Paras Notes

Persons and Family Relations Atty. Jacqueline Lopez

I.1. Definition of Laws according to Sanchez

Roman

2. Classification of laws according to the manner of promulgation

a. Natural Law – promulgated impliedly in our conscience and body

b. Human Positive Law – A reasonable rule of action, expressly or directly promulgated by competent human authority for the common good, and usually, but nor necessarily, imposing a sanction in case of disobedience

3. Classification of Human Positive Lawa. According to whether a right is given, or

merely the procedure for enforcement is laid down

1. SUBSTANTIVE LAW – establishes rights and duties

2. REMEDIAL/PROCEDURAL/ADJECTIVE LAW – prescribes the manner of enforcing legal rights and claims

b. According to scope or content of the law

1. PRIVATE LAW – regulates relations of the members of a community with one another

2. PUBLIC LAW – governs the relations of an individual with the State or ruler or community as a whole

c. According to force or effect1. MANDATORY and/or PROHIBITORY LAWS – have to be complied with

because they are expressive of public policy; disobedience is punished either by direct penalties or by considering an act or contract void2. PERMISSIVE LAWS – may be deviated from

4. Definition of Civil LawIt is the branch of law that generally treats of the personal and family relations of an individual, his property and successional rights, and the effects of his obligations and contracts

5. Definition of Civil CodeIt is a compilation of existing civil laws, scientifically arranged into books, titles, chapters, and sub-heads and promulgated by legislative authority

II.A.1. Sources of the Civil Code

- Civil Code of Spain- Philippine Constitution of 1935- Statutes or laws (Philippine, American,

European)- Rules of Court (local and foreign)- Decisions of local tribunals (especially the

Supreme Court)- Decisions of foreign tribunals- Customs and traditions of our people- General principles of law and equity- Ideas from the Code Commission

Karen Feliz G Supnad UST Faculty of Civil Law1


2. Books of the Civil CodeBook I – PersonsBook II – Property, Ownership, and its

ModificationsBook III – Different Modes of Acquiring

OwnershipBook IV – Obligations and Contracts

3. Code Commission- Created by Pres. Roxas through EO 48 on

March 20, 1947- Final draft finished on Dec. 16, 1947- Commission rendered report in a

publication on Jan. 26, 1948- Congress approved draft on June 18, 1949

as RA 386- Original Members of the Code Commission:

Dean Jorge Bocobo Judge Guillermo B Guevarra Dean Pedro R Ylagan Dean Francisco Capistrano Senator Arturo Tolentino

THE CIVIL CODE OF THE PHILIPPINES

PRELIMINARY TITLE

CHAPTER 1. Effect and Application of Laws

Art. 1. This Act shall be known as the Civil Code of the Philippines.

Art. 2. Laws shall take effect after 15 days following the completion of their

publication in the Official Gazette, or in any newspaper of general circulation, unless otherwise provided. This Code shall take effect one year after such publication.

Tanada v TuveraGR 63915, April 24, 1985

Facts:Petitioners in this case filed this petition tin order

to compel respondent public officials to publish or to cause the publication of various presidential decrees, letters of instruction, general orders, proclamations, executive orders, letter of implementation and administrative orders.

Respondents contend that publication is not a condition sine qua non for the effectivity of laws where the laws themselves provide for their own effectivity dates. Issue:

W/N publication is an indispensable requirement for the effectivity of laws

Held:Yes. Commonwealth Act 638 states that:There shall be published in the Official Gazette:[1] All important legislative acts and resolutions of a public nature of the Congress of the Philippines;[2] All executive and administrative orders and proclamations, except such as have no general applicability;[3] Decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published;



[4] Such documents or classes of documents as may be required so to be published by law; and[5] Such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize to be so published.It is clear in the above-quoted provision that its

object is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim, “Ignorantia legis non excusat.” Without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees.

Tanada v TuveraGR 63915, Dec. 29, 1986

Facts:Due process was invoked by the petitioners in

demanding the disclosure of a number of PDs which they claimed had not been published as required by law. The government argued that while publication was necessary as a rule, it was not so when it was “otherwise provided.”Issue:

W/N the clause “unless otherwise provided” refers to the requirement of publication in Art. 2 of the Civil CodeHeld:

No. The clause “unless it is otherwise provided” refers to the date of effectivity and not to the

requirement of publication itself which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its publication. It is not correct to say that under the disputed clause, publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. The conclusive presumption that every person knows the law presupposes that the law has been published if the presumption is to have any legal justification at all.

Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The mere mention of the number of the presidential decree, the title of such decree, the supposed date of its effectivity, and in a mere supplement of the OG cannot satisfy the publication requirement, it is not even substantial compliance.

Lara v Del RosarioGR 6339, April 20, 1954

Facts:Del Rosario operated a taxi business under the

name of Waval Taxi. He employed mechanics and drivers , the latter having worked for periods ranging from 2-37 months. On Sept. 4, 1959, without giving his employees 30 days advance notice, he sold his cabs to La Mallorca resulting to the termination of employment of the mechanics and drivers because La Mallorca failed to continue them in their employment.

This action was brought about by the employees to recover compensation for overtime work rendered beyond 8 hours and on Sundays and legal holidays, and



1 month salary or mesada, provided for in Art. 302 of the Code of Commerce because of Del Rosario’s failure to give them a month’s notice. The drivers received to fixed compensation based on the hours or the period of time that they worked. They were paid on commission basis.Issue:

W/N the drivers are entitled to compensation for overtime pay as stated in the Code of CommerceHeld:

No. Art. 2270 of the Civil Code already repealed the provisions of the Code of Commerce regarding agency when the former took effect on August 30, 1950, or one year after its publication in the OG, as the new Civil Code itself provides in Art. 2.

Art. 3. Ignorance of the law excuses no one from compliance therewith.

This provision refers to local laws except permissive laws

Foreign law must be proved as a fact

Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.

Exceptions to prospective effects of laws:o If the law itself provides for retroactivity

except as an ex post facto lawo Remedial or procedural lawso Penal statutes if favorable to the accused

Except if the accused is a habitual delinquent

o Laws of an emergency nature and are authorized by government police power

o Curative laws but must not impair vested rights nor affect final judgment

o If a substantive right be declared for the first time unless vested right are impaired

Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

Exceptions:o When the maw makes the act not void but

merely voidableo When the law makes the act valid but

subjects the wrongdoer to criminal responsibility

o When the law makes the act itself valid but recognizes some legal effects flowing therefrom

o When the law itself makes certain acts valid although generally they would have been void

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

Rights may be:o Real (jus in rem/in re) – enforceable against

the whole worldo Personal (in personam/ad rem)

Requisites for a valid waiver:



o Capacity to make the waivero Must be made clearlyo Ownership of to be waivedo In some instances, must comply with

formalitieso Must not by contrary to law, public policy,

public order, morals, or good customs

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.

Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity, or insufficiency of the laws.

Judge must apply:o Customs not contrary to law, public order,

and public policy

o Decisions of foreign and local courts on similar cases

o Opinions of highly qualified writers and professors

o Rules of statutory constructiono Principles laid down in analogous instances

Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.

Rules of Statutory Construction:o When a law is clearly worded, there is no

room for interpretationo If there are two possible interpretations, that

which will achieve the ends desired by Congress should be adopted

o Consider: Preamble Foreign laws from which the law was

derived History of the framing of the law and

deliberations on the same Similar laws on same subject matter

o Patent or obvious mistakes and misprints may be corrected by our courts

o Laws of pleading, practice, and procedure must be liberally construed

Art. 11. Customs which are contrary to law, public order or public policy shall not be countenanced.



Customo A rule of human action established by

repeated acts, and uniformly observed or practiced as a rule of society, through the implicit approval of the lawmakers, and which is therefore generally obligatory and legally binding

o [Custom of a place] That which is brought about by local usage, and is not annexed or peculiar to any particular individual

o Unwritten, spontaneous, comes from society, compared to LAW which is written, consciously made, and enacted by Congress

o Requisites: Must be proved as a fact, according to the

rules of evidence; otherwise, the custom cannot be considered as a source of right

Must not be contrary to law (contra legem), public order, or public policy

A number of repeated acts Repeated acts must have been uniformly

performed Juridical intention (convivtio juris seu

necessitates) to make a rule of social conduct

Sufficient lapse of time => gives evidence of existence

Art. 12. A custom must be proved as a fact, according to the rules of evidence.

Presumption: A person acts according to the custom of the place

A custom is presumed to not exist when those who should know, do not know of its existence

Kinds:o General – custom of a countryo Custom of the place – one where an act

transpireso Propter legem (in accordance with law) –

unnecessary to apply because it repeats the law

o Contra legem (against the law) – wrong to apply

o Extra legem – may constitute sources of supplementary law in default of specific legislation on the matter

Art. 13. When the law speaks of years, months, days or nights, it shall be understood that years are of 365 days each; months, of 30 days; days, of 24 hours; and nights, from sunset to sunrise.

If months are designated by their name, they shall be computed by the number of days which they respectively have.

In computing a period, the first day shall be excluded, and the last day included.

This article was repealed by EO 292, specifically wherein one year now means 12 calendar months

A civil or solar or calendar month is that which agrees with the Gregorian calendaro When months are not designated by name, a

month is understood to be only 30 days

Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or



sojourn on Philippine territory, subject to the principles of public international law and to treaty stipulations.

Theory of territoriality: Any offense committed within our territory offends the State; any person, whether citizen or alien, can be punished for committing a crime here because aliens owe some sort of allegiance, even if it be temporaryo Exceptions: (Art. 2 of the RPC)

Offenses committed in a Philippine ship or airship

Offenses involving the forging or counterfeiting of coins or currencies of the Philippine Islands, or obligations and securities issued by the Government of the Philippines

Acts connected with the introduction into the Philippine Islands of such forged or counterfeited coins and currencies, or obligations and securitites stated in the preceding number

Offenses committed by public employees in the exercise of their functions

Offenses committed against national security and the law of nations

Theory of generality: Penal laws shall be obligatory upon all those who live or sojourn in Philippine territoryo Exceptions:

Principles of public international law Dipomatic Immunity as according to

the 1963 Vienna Convention on Diplomatic Relations

Presence of treaty stipulations The grant of bases necessarily includes

the waiver of jurisdiction within the terms “necessarily appurtenances to such bases, and the rights incident thereto”

Art. 15. Laws relating to family right and duties or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

Status (in Civil Law):o Personal qualities and relations, more or less

permanent in nature, and not ordinarily terminable at his own will

o The distinct consideration of a person before the civil law (Sanchez Roman)

Scope of this Article:o Family rights and dutieso Statuso Conditiono Legal Capacity

Applicability of this Article:o This article is a rule of private international

law which stresses the principle of nationality The capacity to enter into an ordinary contract

is governed by the national law of the person, and not by the law of the place where the contract was entered into (lex loci celebrationis)

Art. 15, Code of Commerce: Foreigners and companies created abroad may engage in commerce in the Philippines subject to the laws



of their country with respect to their capacity to contract

Capacity to enter into other relations or contracts is not necessarily governed by the national law of the person concerned:o Property rights – Where the property is

situatued (lex rei sitae)o Successional rights – National law of the

decedento Marriage – Where celebrated subject to

exceptions (lex loci celebrationis/locus regit actum)

Tenchavez v Escano15 SCRA 355

Facts:Vicenta Escano and Pastor Tenchavez exchanged

marriage vows on Feb. 24, 1948, without the knowledge of the formers parents in the house of a certain Juan Alburo, before a Catholic chaplain, Lt. Moises Lavares. Such marriage was duly registered with the LCR. They planned to elope the midnight following their marriage, but the same did not materialize because Vicenta’s mother obtained knowledge of the marriage and made her attend classes. She was taken home afterwards wherein she admitted that she had already married Pastor. Vicenta’s parents sought the advice of a priest, Father Reynes, who suggested a recelebration to validate the marriage. The recelebration, however, did not take place because on Feb. 26, Mamerto, Vcenta’s father received an anonymous letter from Vicenta’s schoolmates saying that Pastor was having an affair with a certain Pacita Noel. They then drifted apart. On June 24, 1950, without informing Pastor, Vicenta applied

for a passport, indicating in her application that she was single, and that her purpose was to study. The application was approved and she left for the US. On Aug. 22, she filed a verified petition for divorce against Pastor which was granted by the Court of Nevada. Her parents then filed a petition for annulment of the marriage of Vicenta and Pastor.

On September 13, 1954, Vicenta married American, Russel Leo Moran, in Nevada. She now lives in California and has begotten children. She acquired American citizenship on Aug. 8, 1958.

On July 30, 1955, Pastor initiated this case and asked for legal separation and P1M in damages. Vicenta claimed a valid divorce and a valid marriage to Moran.Issue:

W/N there was a valid divorce decree issuedHeld:

No. The valid marriage between Vicenta and Pastor remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that Vicenta sought and obtained. At the time the divorce decree was issued, Vicenta was still a Filipino citizen and was therefore subject to Philippine law and the Civil Code., which does not admit absolute divorce.

Art. 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law



of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

The “intrinsic validity” referred to in this Article refers to the validity of the content of the testamentary provisions; “extrinsic validity” means whether or not the will itself conforms to forms and solemnities required of it

Testate succession means that a person died with a written will; Intestate succession means that a person died without a will

The second paragraph of this Article may be said to be a continuation of Art. 15

General Rule: Real property as well as personal property is subject to the law of the country where it is situatedo Exception: SUCCESSIONAL RIGHTS –

governed by the national law of the decedent Order of succession Amount of successional rights Intrinsic validity of provisions of a will Capacity to succeed

Renvoi Doctrine: literally means a referring backo Procedureo Jural matter presentedo Referred back by the conflict of law of the

forum to a foreign stateo Which in turn refers the matter back to the

laws of the forum Arises when there is doubt as to whether

a reference in our law to a foreign law:

o Is a reference to the internal law of said foreign law; or

o Is a reference to the whole of the foreign law including its conflict rules

Miciamo v Brimo50 Phil 867

Facts:Juan Miciano, administrator of the estate of the

late Joseph Brimo filed a scheme of partition. Herein appellant, Andre Brimo, one of the brothers of the deceased, opposed it on the ground of Art. 10 of the Civil Code (now Article 16 of the new Civil Code) that legal and testamentary successions shall be regulated by the national law of the person whose succession is in question. Andre contends that the partition is not in consonance with Turkish law, which is Joseph’s national law.Issue:

W/N Turkish law must be applied in this caseHeld:

No. Andre did not prove that said testamentary dispositions are not in accordance with Turkish laws. In the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. Foreign law must be alleged and proved.

Bellis v Bellis20 SCRA 358GR L-23678, June 6, 1967

Facts:Amos Bellis, a Texas native executed a will in the

Philippines, in which he directed that after all taxes,



obligations and expenses of administration are paid for, his distributable estate should be distributed (a) 240,000USD to his first wife, Mary Mallen, (b) 40,000USD each to his three illegitimate children, Amos Jr., Maria Cristina, and Miriam, (c) and that after the foregoing two items have been satisfied, the remainder shall go to his 7 surviving children by Mary Mallen, and his second wife, Violet, in equal shares. The People’s Bank and Trust Co., as executor of the will, paid off all the bequests and gave to the heirs their respective shares.

On Jan. 17, 1964, Maria Cristina and Miriam filed their respective oppositions to the project of partition of the remaining estate of Amos which was intended to satisfy the shares of his 7 legitimate children. Maria Cristina and Miriam alleged that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of Amos.Issue:

W/N Maria Cristina and Miriam as illegitimate children, are compulsory heirs of Amos BellisHeld:

No. Amos Bellis was a citizen of Texas and therefore, Philippine law, which considers illegitimate children as compulsory heirs, are not applicable. Under the Civil Code, the national law of the decedent, in intestate or testamentary successions, is that which applies. The will that Amos executed which covers his properties in the Philippines is null and void. Whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend to the succession of foreign nationals. Congress has specifically chosen to leave the amount of successional rights to the decedent’s national law.

Christensen v ChristensenGR L-16759, Januray 31, 1963

Facts:Edward Christensen was a citizen of the United

States but at the time of his death, he was domiciled in the Philippines. In his will, he declared that he has one child, Maria Lucy Christensen, who will get all of his properties minus P3,600 (P100 to be given monthly until the principal plus the interest is consumed) to be given to Maria Helen Christensen who though was baptized Christensen was not in any way related to him. However, Helen, the respondent, contested the will and claimed that the will must be subjected to Philippine laws as stated in Art,16, and thus entitled to ½ of the said properties. Lucy on the other hand alleged that under the California Probate Code, a testor may dispose his property by will in any form or manner he desires. The lower court held the contention of Lucy to be with merit.Issue:Whether or not California law shall apply, it being the natural law of the testator, in accordance to Art.16 of the civil code.Held:The natural law of the person whose succession is under consideration is California law which he is a citizen of. However, there are two laws governing the citizens of the state namely: Internal Laws and the Conflict of Laws – internal laws shall govern all citizens residing therein while conflict of laws apply to its citizens abroad. Hence in this case, the conflict of laws should apply since Edward was domiciled in the Philippines at the time of his death. Under the conflict of laws, it authorizes the reference or return of the question to the law of the



testator’s domicile. Therefore, Philippine courts should apply its own laws for the Philippines is his domicile. Applying the doctrine of ren voi, the question of the validity of the testamentary provision in question should refer back to the laws of the decedent’s domicile, which is the Philippines. Under Philippine law, the Civil Code makes natural children legally acknowledged forced heirs of the parent recognizing them.

Art. 17. The forms and solemnities of contract, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine Laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

Par. 1 of this article follows lex loci celebrationis, except formalities for the acquisition, encumbrance and alienation of property, which shall be governed by lex rei sitae

Par. 2 of this article is the principle of extra-territoriality

The prevailing rule in private international law regarding the intrinsic validity of contracts is to consider the lex loci voluntatis (law of the place voluntarily selected) or the lex loci intentionis (law of the place intended by the parties to the contract)

Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code.

General Rule: Special law prevails over the Civil Code (suppletory in nature because it is a general law)o Exceptions:

Common carriers – Code of Commerce supplies the deficiency

Insolvency – special laws supply the deficiency

Book I. Persons

Title I. – CIVIL PERSONALITY

CHAPTER 1. General Provisions

Person – any being, natural or artificial, capable of possessing legal rights and obligations, and may be the subject of legal relations

Kinds of persons:o Natural persons – human beings created by

God through the intervention of the parentso Juridical persons – those created by law



Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.

A person is always presumed to have the capacity to act

Juridical capacity – fitness to be the subject of legal relations

Capacity to act – power to so acts with legal effects

Differences between juridical capacity and capacity to act

Juridical Capacity Capacity to ActPassive ActiveInherent Merely AcquiredLost only through death

Lost through death and may be restricted by other causes

Can exist without capacity to act

Exists always with juridical capacity

Juridical capacity is also known as:o Capacidad juridica

Capacity to act is also known as:o Capacidad de obraro Facultas agendi

Full or Complete Civil Capacity is the union of the kinds of capacity (plena capacidad civil)

Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements.

Prodigality – state of squandering money or property with a morbid desire to prejudice the heirs of a person

Civil Interdiction – deprivation by the court of a person’s right:o To have parental/marital authorityo To be the guardian of the person and

property of a wardo To dispose of his property by an act inter

vivoso To manage his own property

Effect of civil interdiction:o Restrictions in this article do not

extinguish capacity to act. They merely restrict or limit the same

o The incapacitated person is not exempt from certain obligations arising from his acts

Insanity – a condition in which a person’s mind is sick

Imbecility – feeble-mindedness; a condition in which a person thinks like a small child

Art. 39. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-



mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion.

A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law.

This article includes circumstances which modify capacity to act

Chapter 2. Natural Persons

Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article.

Presumptive Personality: Personality begins at conception

A newborn is a child from the time of complete delivery until he is 30 days old

Art. 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.

2 kinds of children:o Ordinary – with an intra-uterine life of at

least 7 months (mere birth is sufficient)o Extraordinary – with an intra-uterine life of

less than 7 months (should not die within 24 hours after delivery)

The law says that the foetus is considered born only for civil purposes which are beneficial to it

Quimiguing v Icao34 SCRA 132

Facts:Carmen Quimiguing sued Felix Icao for damages

because according to her, when they were neighbors in Dapitan City, they had an affair and as a result of this, she became pregnant. She then went to court to ask for support of her child.

The trial court ruled in favor of Felix when he said that Carmen never alleged that a child had been born. When Carmen had already given birth, she again tried to ask for support but was denied because the trial court said that in the original action, no cause of action was averred.Issue:

W/N Carmen is entitled to support for her childHeld:

Yes. Art. 40 of the Civil Code explicitly provides that a conceived child, although as yet unborn, is given by law a provisional personality of its own for all purposes favorable to it. The unborn child, therefore, has a right to support from its parents, particularly of Felix, even if the child is just a conceived child.



Geluz v CA2 SCRA 801

Facts:In 1950, Nita Villanueva became pregnant by her

husband, herein private respondent, Oscar Lazo, before they were legally married. To conceal her pregnancy from her parents, she had an abortion, which was performed by herein petitioner Antionio Geluz, a registered physician. After she and Oscar got married, she again became pregnant, but again got an abortion because it was an inconvenience to her job in the COMELEC. Less than two years later, she again became pregnant, and again, she got an abortion from the Geluz. Oscar was, at this time, campaigning for public office in Cagayan and had no knowledge of, nor gave his consent to the abortion.

Upon knowledge of said last abortion, Oscar filed a petition for award of damages. This was granted by the trial court and the CA in the amount of P3,000, which covers an award for the death of a person.Issue:

W/N Oscar and Nita are entitled to an award for damagesHeld:

No. Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted in behalf of the inborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs, In fact, even if a cause of action did accrue of behalf of the unborn chills, the same was extinguished by its prenatal death, since no transmission to anyone can take place from one who lacked juridical

personality. It is no answer to invoke the provisional personality of a conceived child under Art. 40 of the Civil Code because that same article expressly limits such provisional personality by imposing the condition specified in the next article. In this case, there is no dispute that the child was dead when it was separated from its mother’s womb.

Art. 42. Civil personality is extinguished by death.

The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will.

Art. 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.

Rules of Court, Rule 131, sec. 3 (jj)- When two persons perish in the same

calamity, such as a wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, according to the following rules:



a. If both were under the age of 15 years, the older is presumed to have survived

b. If both were above the age of 60, the younger is presumed to have survived

c. If one be under 15 and the other above 60, the former is presumed to have survived

d. If both be over 15 and under 60, and the sexes be different, the male is presumed to have survived; if the sexes be the same, then the older

e. If one be under 15 or over 60, and the other between those ages, the latter is presumed to have survived

This applies to all cases except those which involve two or more persons who are called to succeed each other

Whoever alleges the death of one person prior to the other, shall prove the same through a preponderance of evidence

CHAPTER 3. Juridical Persons

Art. 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as

they have been constituted according to the law;

(3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

Two kinds of juridical persons:o Public juridical persons

Public corporations like provinces and cities

The State itselfo Private juridical persons

Private corporations Begins to exist as a juridical person

from the moment a certificate of incorporation is granted to it, which certificate is issued upon filing the articles of incorporation with the Securities and Exchange Commission

Partnerships Foundations

The Roman Catholic Church in the Philippines is a person, but it is an entity or person separate and distinct from the personality of the Pope or the Holy See

Art. 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing them.



Private corporations are regulated by laws of general application on the subject.

Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships.

GR: The nationality of a corporation is generally determines by the place of its incorporationo Exceptions:

For the grant of rights in the Constitution to the operation of public utilities, and for the acquisition of land, and other natural resources, a corporation, even if incorporated here, cannot acquire said rights unless 60% of its capital be Philippine-owned

During war, we may pierce the veil of corporate identity, and go to the very nationality of the controlling stockholder regardless of where the incorporation had been made for the purpose of freezing its assets or for other means for Philippine security

Even if a foreign corporation is not doing business in the Philippines, and even if not licensed, it may sue here in our country

There is no general rule or governing principle as to what constitutes “doing” or “engaging in” or “transacting” business in the Philippines

Art. 46. Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in

conformity with the laws and regulations of their organization.

Rights of juridical persons:o To acquire and possess property of all kindso To incur obligationso To bring civil or criminal actions

A corporation may not form a partnership because the relationship of trust and confidence which is found in a partnership is absent in corporations

Under the Laurel-Langley Agreement, a partnership or a corporation whose controlling interest is American may engage in the exploitation and development of our natural resources only if the particular US state which the members or stockholders are citizens of allow reciprocal rights to Filipino citizens and associations or corporations

Under RA 1180, persons not citizens of the Philippines, and associations, partnerships, or corporations the capital of which is not owned wholly by citizens of the Philippines, are prohibited from engaging in the retail trade directly or indirectly

A person who contracts with a “corporation” cannot later deny its personality

Art. 47. Upon the dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of Article 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to



similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same.

This article refers to public corporations or associations

How assets are to be distributed:o First, apply the provisions of the law or

charter creating themo Second, if there is no such provision, the

assets will be for the benefit of the place which was already receiving the principal benefits during the existence of the corporation or association

A corporation can exercise its powers and transact business can only do so thru its board of directors, officers and agents, when authorized by a board resolution or its by-laws

THE FAMILY CODE OF THE PHILIPPINES

Title I. – MARRIAGE

CHAPTER 1. Requisites of Marriage

EO 209 or the Family Code of the Philippines was signed into effectivity by Pres. Corazon Aquino on July 6, 1987

It became effective on August 3, 1988 Family Code Committee members:o JBL Reyes

o Ricardo Punoo Eduardo Caguioa

Rationale for Civil Code revision and Family Code enactment:o To modernize legislationo To be made applicable to Filipino cultureo Implementation of certain provisions of the

1987 Constitution

Art. 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

2 aspects of marriage:o Special contracto Status or a relation or an institution

Marriage is the union and inviolable social institution of one man with one woman for the reciprocal blessings of a domestic home life, and for the birth, rearing, and education of children

Marriage is a new relation in the maintenance of which the general public is interested

Purpose of marriage: establishment of conjugal and family life



Art. 15 of the Constitution: Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State

Marriage versus Ordinary Contracts:o As to sex of contracting parties:

Marriage: One man and one woman OC: No particular gender pairing required

o As to nature: Marriage: Social institution + contract OC: Mere contract only

o As to content and consequences: Marriage: Stipulations are of no value

because its nature and consequences, as well as its incidents are governed by law

OC: Agreements depend on stipulations of the parties

o As to age of capacity: Marriage: Age varies as regards the

requirements for marriage OC: Age of majority

o As to dissolution: Marriage: Dissolved by death or

annulment or declaration of nullity OC: Dissolved by mutual agreement and

other legal causes

Philippine Telegraph and Telephone Company v NLRC272 SCRA 596

Facts:Grace de Guzman was initially hired by petitioner

as a reliever, specifically as a “Supernumerary Project Worker” for a fixed period from Nov. 21, 1990 to April 20, 1991. Under the reliever agreement she signed with

petitioner, her employment was to be immediately terminated upon the expiration of said period. Thereafter, from June 10, 1991 to July 1, 1991, and from July 19, 1991 to Aug. 8, 1991, Grace’s services as reliever were again engaged by petitioner. On Sept. 2, 1991, she was once more asked to join the company as a probationary employee, the probationary period, covering 150 days. In the job application, she stated that she was single, although in truth, she had contracted marriage earlier, on May 26, 1991. It appears that she had also stated that she was single in the last two reliever agreements that she signed. When the company learned of her marriage, it asked her about the discrepancy and reminder her of the company policy of not accepting married women for employment. She was terminated thereafter, and she then filed a complaint for illegal dismissal.

The labor arbiter handed down a decision stating that Grace was illegally dismissed and that the ground relied upon by the company for such dismissal was clearly insufficient, and that it was apparent that Grace wad been discriminated against on account of her having contracting marriage in violation of company rules.Issue:

W/N the company policy of not hiring married women are contrary to lawHeld:

Yes. Petitioner’s policy of not accepting any woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by our lawbor laws and the Constitution. It also runs against the policy of the state to regard marriage as sacrosanct as according to the Constitution and the Family Code of the Philippines.



Balogbog v CAGR 83598, March 7, 1997

Facts:The deceased Basilio and Genoveva Balogbog dies

intestate, leaving two children, Leoncia and Gaudioso. They had another child, Gavino, but he died before his parents did. In 1968, respondents Ramonito and Generoso Balogbog brought an action for partition and accounting against petitioners Leoncia and Gaudioso, alleging that they were legitimate children of Gavino and Catalina Ubas, and as such, they were entitled to the 1/3 share of their father in their grandparents’ estate.

When the petitioners contested their legitimacy, they presented various witnesses to their parents’ wedding and their own births. Meanwhile, to rebut such witness testimonies, petitioners denied that their brother had any legitimate children and said that they didn’t know the respondents. They also obtained a certificate from the LCR to the effect that the office didn’t have a record of the marriage of Gavino and Catalina.Issue:

W/N Ramonito and Generoso are entitled to their father’s share in the estate of the latter’s parentsHeld:

Yes. The presumption is that a man and a woman conducting themselves as husband and wife are legally married. This evidence may be rebutted only by cogent proof to the contrary. There is no merit in the argument that the existence of the marriage cannot be presumed because there was no evidence showing in particular that Gavino and Catalina, in the presence of two

witnesses, declared that they were taking each other as husband and wife. An exchange of vows can be presumed to have been made from the testimonies of the witnesses who state that a wedding took place, since the very purpose for having a wedding is to exchange vows of marital commitment.

The law favors the validity of marriafe because the State is interested in the preservation of the family and the sanctity of the family is a matter of constitutional concern.

Hermosisima v CAGR L-14628, September 30, 1960

Facts:Soledad Cagigas, who was ten years younger than

Francisco Hermosisima, was a school teacher in Cebu when she met the latter. They then used to go around and were regarded as engaged. She became pregnant, and when she told Francisco, he promised to marry her. However, a few months thereafter, Francisco married a certain Romanita Perez.

Soledad then filed an action damages for his breach of promise to marry her.Issue:

W/N moral damages are recoverable for breach of promise to marryHeld:

No. In the Old Civil Code of Spain, it was permitted to recover damages for breach of promise to marry. Certain proposals to include similar provisions in the new Civil Code were made but the same were eliminated in Congress because there had already been a ruling in the case of De Jesus v Syquia, that breach of



promise to marry is not actionable. These objections were approved in both houses.

Wassmer v Velez12 SCRA 648

Facts:Francisco Velez and Beatriz Wasmer decided to

get married and set Sept. 4, 1954 as the big day. They had already applied for and obtained a marriage license, the invitations were sent out, the dresses were made, everything was ready. On Sept. 2 however, Velez left a note for Wasmer saying that the wedding has to be postponed because his mother opposes it, and left for his hometown in Mindanao. The next day, however, he wired a message to Wasmer saying that nothing has changed and that he will be back soon. He never returned.Issue:

W/N such breach of promise to marry in this case is actionableHeld:

Yes. This is not a case of a mere breach of promise to marry because such is not actionable. But in this case, to formally set a wedding and go through all the preparation and publicity, only to walk out of it when the matrimony is about to be solemnized is quite different. This is palpably and unjustifiably contrary to good customs for which Velez must be held answerable for damages.

Art. 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer.

“Consent” as used in this article means consent of the contracting partieso Parental consent is in connection with legal

capacityo Consent vitiated by error, fraud, intimidation,

force, etc., renders the marriage merely voidable

o If there is absolutely no consent, the marriage is void

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

Legal Capacity – necessary age or necessary consent; no impediment caused by a prior



existing marriage or by certain relationships by affinity or consanguinity

Absence of any of the formal requisites renders the marriage VOID AB INITIO if except if one or both of the contracting parties are in good faith

According to Sec. 43 of the Marriage Law of 1929, which has not been repealed up to now, solemnizing a marriage without authority to do so is punishable by:o Imprisonment of not less than 1 month and

not more than 2 yearso Fine of not less than 50Php but not more

than 2,000Php

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).

A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45.

An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.

Art. 35 (2) – Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so (VOID FROM THE BEGINNING)

Art. 45 – Grounds for annulment:o Person asking for annulment is over 18 but

below 21, married without parental consent unless the marriage is ratified by non-action

o Either party is of unsound mindo Consent is vitiated by fraud, unless ratified

by non-actiono Consent vitiated by force, intimidation, or

undue influence, unless ratified by non-action

o Physical incapacity of consummating the marriage, and the incapability continues or is incurable

o Either party is suffering from a sexually transmitted disease, and such STD is serious and incurable

Art. 5. Any male or female of the age of 18 years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage.

Art. 37 – The following marriages are incestuous and void, whether or not the parties have a legitimate relationship:o Ascendants and descendants of any degreeo Brothers and sisters, whether full or half-

blood Art. 38 – The following marriages are void for

reason of public policy:o Between collateral blood relatives, w/n

legitimate, up to 4th civil degreeo Between step-parents and their step-children



o Between parents-in-law and their children-in-law

o Between the adopting parent and the adopted child

o Between the surviving spouse of the adopting parent and the adopted child

o Between the surviving spouse of the adopted child and the adopter

o Between the adopted child and the legitimate child of the adopter

o Between adopted children of the same adopter

o Between the killer and the victim’s spouse if the intention to marry was the motivation for the crime

Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be container in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer.

In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer.

A ceremony is required, although no particular form is needed

A common-law marriage is onw hwere the man and the woman live together as husband and wife without getting married

Marriage by proxy: one where the other party is merely represented by a delegate or friend.o RULES:

If performed in the Philippines, such marriage is void because the physical presence of the parties is required

If performed abroad, regardless of the nationality of the contracting parties, Art. 26 applies (follow laws of country where marriage was solemnized) without prejudice to restrictions that may be imposed by our immigration laws

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court’s jurisdiction;

(2) Any priest, rabbi, imam, or minister of any church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer’s church or religious sect;



(3) Any ship captain or airplane chief only in the cases mentioned in Article 31;

(4) Any military commander of a unit to which a chaplain is assigner, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or

(5) Any consul-general, consul, or vice-consul in the case provided in Article 10.

Under the Local Government Code which became effective on Jan. 1, 1992, mayors are now authorized to perform marriages within their jurisdiction

A marriage in articulo mortis between passengers or crew members may be solemnized by a ship captain or by am airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call because it is part of the voyage stillo An assistant pilot or captain cannot

solemnize marriages in any case A military commander may solemnize

marriages in articulo mortis within the zone of military operationo He must be a commissioned officer with the

rank of at least 2nd Lieutenanto “Unit” refers to a battalion and not merely a

companyo There must be an actual war and not just a

simulated military exercise

Consular officials may solemnize marriages between Filipino citizens whether living or sojourning abroado In this case, the consular official must

perform the role of the solemnizing officer, and also of the local civil registrar as regards the issuance of the marriage license

If a person seeks to impugn the validity of a marriage in the ground that the person who solemnized it was not really authorized, such lack of authorization must be proved by the person seeking to challenge the same

Cosca v Palaypayon237 SCRA 249

Facts:Judge Palaypayon and Clerk of Court Nelia Baroy,

herein respondents, were complained of illegal solemnization of marriage, falsification of the monthly reports of cases, bribery in consideration of an appointment in the court, non-issuance of receipt for cash bond received, infidelity in the custody of detained prisoners, and requiring payment of filing fees from exempted entities. The complainants were also members of the staff of court.

Complainants allege that the judge solemnized marriages even without the requisite marriage license. Thus, some couples were able to get married by the simple expedient of paying the marriage fees to Baroy. As a consequence, their marriage contracts did not reflect any marriage license number. In addition, the judge did not sign their marriage contracts and did not indicate the date of the solemnization, the reason being that he allegedly had to wait for the marriage license to



be submitted by the parties. Such marriage contracts were not filed with the LCR. Issue:

W/N such marriages are valid under the Family CodeHeld:

No. The Family Code pertinently provides that one of the formal requisites of marriage is a valid marriage license except in some cases. It also declares that the absence of any of the essential or formal requisites shall render the marriage void ab initio. Judge Palaypayon is also civilly, criminally, and administratively liable.

People v Bustamante105 Phil 64

Facts:Federico Bustamante married Maria Perez on

August 9, 1954 before the Justice of the Peace of Binalonan, Pangasinan. He then married Demetria Tibayan on Sept. 16, 1955 before Vice Mayor Francisco Nato, who was then Acting Mayor of the municipality. Federico lived with Demetria and her parents for about a month, after which time he returned to Maria. Demetria learned of Federico’s first marriage when she was looking for him. She filed a criminal charge of bigamy against Federico.Issue:

W/N the second marriage is valid, it having been solemnized by an acting mayor onlyHeld:

Yes. When the issue involves the assumption of powers and duties of the office of the mayor by the vice-mayor, it is immaterial whether it is because the latter is the Acting Mayor or merely acting as mayor, for in both

instances, he discharges all the duties and wields the duties the powers appurtenant to said office. This instance does not involve a question of title to the office, but the performance of the functions thereunto appertaining by one who is admitted to be temporarily vested with it.

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul, or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code or where both of the parties request the solemnizing offices in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect.

Rationale: The requirement that marriage be done publicly is based on the premise that the State takes an active interest in the marriage

GR: The marriage shall be solemnized in the chambers of the judge, or in open court, in the church, chapel or temple, or in the office of the consul-general, consul, or vice-consul, as the case may beo Exceptions:

In cases of marriages contracted at the point of death

In remote places in accordance with Art. 29

Where both of the parties request the solemnizing officer in writing in which



case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect

Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title.

Effect of non-observance of this article: Marriage is valid; Only a mere irregularity

The marriage license should be issued by the local civil registrar of the municipality where either contracting party habitually resides

The solemnizing officer need not investigate whether or not the license had been properly issued

Cases where marriage license is not required:o Marriages solemnized by a ship captain,

airplane chief, or military commander of a unit

o Marriages in articulo mortiso Marriages in remote placeso Marriages of people who have previously

cohabited for at least 5 years with no legal impediments to marry

o Marriages between pagans and Mohammedans, who live in non-Christian provinces, and who are married in accordance with their customs

Religious ratification of a valid marriage does not require a marriage license

Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.

Transients and sojourners are included in this case

Art. 26 is an exception to this case

Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following:

(4) Full name of the contracting party(5) Place of birth(6) Age and date of birth(7) Civil status(8) If previously married, how, when

and where the previous marriage was dissolved or annulled

(9) Present residence and citizenship(10) Degree of relationship of the

contracting parties(11) Full name, residence and

citizenship of the father(12) Full name, residence and

citizenship of the mother(13) Full name, residence and

citizenship of the guardian or person having charge, in case the



contracting party has neither father nor mother and is under the age of 21 years.

The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license.

Purpose of this article: For the public to be notified of the marriage license application

Effect of false statement: Liable under Art. 172 of the RPC – Falsification of public documents

Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificate or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents required by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original, or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the

same has been required of the person having custody thereof at least 15 days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality.

The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of such parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age.

This article sets forth the rules by which the civil registrar shall determine as to whether the parties have the required age for marriage

When presentation of birth or baptismal certificate not required:o When the parents of the contracting parties

appear personally before the local civil registrar concerned and swear to the



correctness of the lawful age of said parties, as stated in the application (Art. 12)

o When the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age (Art. 12)

o When either or both parties had been previously married, they shall present the death certificate of the deceased spouse, or the judicial decree of absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage (Art. 13)

Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse.

Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to

their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorder in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications.

Without parental consent, the marriage is only voidable, not void

Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardians for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.

If parents refuse to give advice or gives an unfavorable advice, the marriage would still be possible pursuant to this article



If parties refuse to obtain parental advice, the marriage license must not be issued till after 3 months from the end of the 10-day publication

Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificate of marriage license shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.

Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph.

Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general

public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication.

Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings therein in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of an interested party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuance of the order.

The local civil registrar, in the issuance of the marriage license, exercises only a ministerial function (he has no authority to exercise discretion in issuing the marriage license)

Marriage Law of 1929, Sec. 38:

Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit or by their oath before the local civil registrar.



Art. 20. The license shall be valid in any part of the Philippines for a period of 120 days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued.

Under Art. 350 of the RPC, any officer who solemnizes a marriage as well as the parties thereto after the license had expired may be held criminally liable

Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials.

Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.

This article is based in the nationality theory pursuant to Art. 15 of the Civil Code

The capacity of foreigners to contract marriage in the Philippines is subject to their personal law, thus, they are required under this article to obtain a certificate of legal capacity

This article applies when at least one of the contracting parties are foreigners

The certificate of legal capacity should be issued by the proper diplomatic or consular officials

There is no such thing as a secret marriage

Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state:

(1) The full name, sex and age of each contracting party;

(2) Their citizenship, religion and habitual residence;

(3) The date and precise time of the celebration of the marriage;

(4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title;

(5) That either or both of the contracting parties have secured the parental consent in appropriate cases;

(6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and

(7) That the parties have entered into a marriage settlement, if any, attaching a copy thereof.

The best documentary evidence of a marriage is the marriage certificate or the marriage contract



Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8.

Regardless of this article, even if no one receives a copy of the marriage certificate, the marriage will still be valid

Trinidad v CA289 SCRA 188

Facts:On August 10, 1978, Arturio Trinidad filed with the

CFI of Aklan an action for partition of land, claiming that he was the son of the late Inocentes Trinidad, one of the 3 children of Patricio Trinidad, who was the original owners of such parcels of land. When Patricio died in 1940, he left the parcels of land to his 3 children, Inocentes, Lourdes, and Felix. In 1970, Arturio demanded from his father’s siblings, Lourdes and Felix,

the partitioning of the land. Lourdes and Felix denied that Arturio was their brother’s son and contended that he was in fact single when he died. In the trial court, Arturio presented various witnesses to prove that Inocentes and Felicidad Molato were in fact married. Felix died during the proceedings and to disprove Arturio’s claim, Lourdes presented witnesses of her own.Issue:

W/N Arturio has sufficiently proven his parents’ marriageHeld:

Yes. According to past jurisprudence, marriage may be proven by relevant evidence. To prove the fact of marriage, the following would constitute competent evidence: the testimony of a witness to the matrimony, the couple’s public and open cohabitation as husband and wife after the alleged wedding, the birth and the baptismal certificates of children born during such union, and the mention of such nuptial in subsequent documents. In this case, Arturio secured a certification from the office of the Civil Registrar of Aklan that all record of births, deaths and marriages were either lost, burned, or destroyed during the Japanese occupation. This is not fatal to Arturio’s plea. Although the marriage contract is considered the primary evidence of the marital union, Arturio’s failure to present it is not proof that no marriage took place, as other forms of relevant evidence may take its place.

Republic v CA and Castro236 SCRA 257

Facts:On June 24, 1970, Angelina Castro and Edwin

Cardenas were married by Judge Pablo Malvar in Pasay.



The marriage was celebrated without the knowledge of Angelina’s parents. After the wedding, the couple did not live together as Angelina’s parents still did not know of the union. It was only in March1971, when Angelina learned she was pregnant, that the couple decided to live together. But their cohabitation lasted only for 4 months, and thereafter, they parted ways. When Angelina gave birth, the baby was adopted by her brother, with Edwin’s consent. Because the baby is in the US, Angelina wanted to go there but she wanted to set her marital affairs in order, and sough the assistance of a lawyer. They found out that there was in fact no marriage license issued to Edwin prior to the celebration of their marriage. She filed for declaration of nullity and presented a certification from the Civil Registry Office that there was no marriage license issued in her and Edwin’s names.Issue:

W/N the marriage is valid given there is no valid marriage licenseHeld:

No. At the time of the celebration of the marriage, the law governing marital relations was the New Civil Code, which provides that no marriage shall be solemnized without a marriage license first issued by a local civil registrar. Being one of the essential requisites of a valid marriage, absence of a license would render the marriage void ab initio

Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage

licenses shall be exempt from documentary stamp tax.

Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses files with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary.

Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), and 36, 37, and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (As amended by EO 227, July 17, 1987)

Requirements to prove a foreign marriage:o The existence of the pertinent provisions of

the foreign marriage lawo The celebration or performance of the

marriage in accordance with said law Foreign law is not of judicial notice and it must

be proved as a fact



Garcia v RecioGR 138322, October 2, 2001

Facts:Rederick Recio, a Filipino, was married to Editha

Samson, an Australian national on March 1, 1987. However, on May 18, 1989, a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court.

On June 26, 1992, Recio became an Australian citizen. He and petitioner Grace Garcia, a Filipina, were married on January 12, 1994. In their application for a marriage license, Recio was declared as “single” and “Filipino.” A year after the wedding, Garcia and Recio started living separately without prior judicial dissolution of their marriage. While they were still in Australia, their conjugal assets were also divided.

On March 3, 1998, Garcia filed a Complaint for Declaration of Nullity of Marriage on the ground of bigamy because Recio allegedly had a prior subsisting marriage at the time he married her. While the suit was pending, Recio was able to secure a divorce decree from the family court in Sydney.Issue:

W/N the divorce decree between Recio and Editha Samson is admissible without proof in Philippine courtsHeld:

No. Before a foreign document is given presumptive evidentiary value, the document must first be presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself. Under the Rules of Court, a writing or document ay be proven as a pubic or official record of a foreign country by either (1) an official publication or (2) a copy thereof

attested to by the officer having legal custody of the document; if the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept, and (b) authenticated by the seal of his office.

However, in this case, such decree presented by Recio as evidence has already been accepted by the trial court because of Garcia’s counsel’s failure to object to such submission.

Van Dorn v Romillo139 SCRA 139

Facts:Alice Reyes, a Filipino citizen, married Richard

Upton in 1972, in Hongkong. They established residence in the Philippines and started a business in Manila. They were divorces in Nevada in 1982, and Alice remarried, also in Nevada with Theodore Van Dorn.

In June 8, 1983, Richard filed suit against Alice regarding the management of the Ermita business, stating that the same was conjugal property. Alice moved to dismiss the case, on the ground that the action was barred by previous judgment in the divorce proceedings wherein Richard acknowledged that he and Alice had no community property as of June 11, 1982. Alice contends that Richard is estopped from laying claim on the business because of the representation he made during the divorce proceedings. Richard avers that the divorce decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy.Issue:



W/N the Nevada divorce, and its pronouncements, are valid under Philippine lawHeld:

Yes. Aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the Nevada divorce released Richard from the marriage according to the standards of American law, under which divorce dissolved the marriage. Thus, pursuant to his national law, Richard is no longer the husband of Alice. He would have no standing to sue in this case as Alice’s husband, entitled to control over conjugal assets.

Quita v CA300 SCRA 406

Facts:Fe Quita and Arturo Padlan, both Filipinos, were

married in the Philippines on May 18, 1941. Somewhere along the way, their relationship lost its spark and Fe filed for a declaration of divorce in the US, which she obtained in 1954. She afterwards got married, then got divorced, then remarried again.

In 1972, Arturo died intestate. After court proceedings, it was found that he had 5 legitimate children, and one illegitimate child. During said proceedings, a certain Blandina Padlan also surfaced, claiming to be the surviving spouse of Arturo.

Fe countered by saying that the divorce decree she obtained in 1954 should not be recognized in the Philippines, as she and Arturo were both Filipinos then. However, there was confusion as to which came first: the issuance of the divorce decree, or her naturalization as an American citizen.Issue:

W/N the divorce decree obtained by Fe is valid in the PhilippinesHeld:

It depends. The reckoning point is the date of Fe’s naturalization as a US citizen. If such naturalization took place before she obtained the divorce decree, then the same shall be valid in the Philippines, since it is valid in the US. However, if the divorce decree was obtained first before she became a US citizen, then the divorce decree will be void in the Philippines because Philippine law does not admit of absolute divorce.Pilapil v Ibay-somera174 SCRA 653

Facts:On Sept. 7, 1979, Imelda Pilapil, a Filipina, and

Erich Geiling, a German national, were married in Germany. They lived together for some time in Malate, and had a baby girl, Isabella. After three and a half years of marriage, Erich initiated a divorce proceeding in Germany in 1983, which petition was granted in 1986.

On June 27, 1986, or more than five months after the issuance of the divorce decree, Erich filed two complaints for adultery before the City Fiscal of Manila against Imelda. Imelda refused to submit to the jurisdiction of the court, claiming that Erich had no cause of action, by reason of the divorce decree that he had obtained.Issue:

W/N Erich has legal standing to sue Imelda for adultery.Held:

No. The crime of adultery cannot be prosecuted except upon a sworn written complaint filed by the



offended spouse, and nobody else. The initiator of such a proceeding must have the status, capacity, or legal representation to do so at the time of the filing of the criminal action.

In this case, the fact that Erich obtained a valid divorce in his country, Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as Erich is concerned, in view of the nationality principle in our civil law on the matter of status of persons. Erich, therefore, being no longer the husband of Imelda, has no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit.

Llorente v CAGR 124371, November 23, 2000

Facts:On Feb. 22, 1937, Lorenzo Llorente and Paula

Llorente, both Filipinos, were married in Camarines Sur. Before the outbreak of the Pacific War, Lorenzo went to the US while Paula stayed in the conjugal home. On Nov. 30, 1943, Lorenzo was admitted to US citizenship. Upon Philippine liberation in 1945, Lorenzo went back home to visit his wife and found that she was pregnant and was living in with his brother, Ceferino. Lorenzo refused to forgive Paula and live with her. He thereafter returned to the US in 1951 and filed for divorce. Paula actively participated in the proceedings. On Nov. 27, 1951, the California court issued an interlocutory judgment of divorce, which became final on Dec. 4, 1952.

Lorenzo returned to the Philippines and marries Alicia Llorente in 1958, and lived together as husband and wife until 1985. In 1981, Lorenzo executed a Last

Will and Testament which was duly notarized. In the will, Lorenzo bequeathed all his property to Alicia and their three children. Lorenzo died on June 11, 1985.

Paula filed a petition for letters of administration over Lorenzo’s estate in her favor, claiming that she was Lorenzo’s surviving spouse. The trial court agreed with Paula, deciding that the divorce decree obtained by Lorenzo was null and void.Issue:

W/N the divorce decree obtained by Lorenzo is valid in the PhilippinesHeld:

Yes. There is no dispute that Lorenzo was already a US citizen when he obtained the divorce decree. Only Philippine nationals are covered by the policy against absolute divorce. Aliens may obtain divorces abroad, provided they are valid according to their national law. The divorce decree obtained by Lorenzo from his first wife Paula is valid and recognized in this jurisdiction as a matter of comity.

CHAPTER 2. Marriages exempt from the license requirement

Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without the necessity of a marriage license and shall remain valid even if the ailing party subsequently survives.

Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be



solemnized without the necessity of a marriage license.

There is no prescribed maximum or minimum distance under the Family Code

Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer such oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage.

Art. 30. The original of the affidavit required in the last preceding article, together with a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage.

Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call.

Art. 32. A military commander of a unit who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians.

Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of a marriage license, provided that they are solemnized in accordance with their customs, rites or practices.

No judicial notice of Mohammedan rites and customs for marriage; MUST BE ALLEGED AND PROVED

This article is consistent with Art. 14, Sec. 13 of the 1987 Philippine Constitution

Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage

Requirements of Ratification of Marital Cohabitation;



o Contracting parties must have lived together as husband and wife for at least 5 years

o No legal impediment must existo Above facts must be stated in an affidavito Necessary affidavit of the person solemnizing

the marriage

Ninal v Bayadog328 SCRA 122

Facts:Pepito Ninal was married to Teodulfa Bellones on

Sept. 26, 1974. On April 24, 1985, Pepito shot Teodulfa, which resulted in her death. A year and 8 months after, on December 11, 1986, Pepito and Norma Bayadog got married without a marriage license. In lieu thereof, they executed an affidavit stating that that they had lived together as husband and wife for at least 5 years, and were therefore exempt from securing a marriage license. On Feb. 19, 1997, Pepito died in a car accident. After his death, his children with his first wife, Teodulfa, filed a motion for declaration of nullity of the marriage of their father and Norma, alleging that the same was void for lack of a marriage license. Issue:

W/N the second marriage of Pepito to Teodulfa is validHeld:

No. According to the Civil Code, which is the law applicable in this case since the marriage in question was celebrated during the effectivity of the same, one of the requisites of a valid marriage is a valid marriage license, without which, the marriage would be void ab initio. However, the Civil Code admits of some instances wherein a marriage license is dispensed with, among

them, the marriage of a man and a woman who have exclusively lived together as husband and wife for at least five years before the marriage. The rationale why such marriage is exempt from the requirement of a marriage license is to avoid exposing the parties to humiliation, shame, and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status.

This exception, however, is not absolute. In this case, working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of marriage, that five-year period should be computed on the basis of cohabitation as “husband and wife,” where the only missing factor is the special contract of marriage to validate the union. In other words, the five year cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for he absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity – meaning no third party was involved at any time within the 5 years, and continuity – that is unbroken.

Manzano v SanchezMTJ 00-1329, March 8, 2001

Facts:Herminia Sanchez and David Manzano were

married on May 21, 1966. However, on March 22, 1993, David contracted another marriage with Luzviminda



Payao before Judge Sanchez. According to Sanchez, when he officiated the marriage, he did not know that David was legally married. What he knew was that the two had been living together as husband and wife without the benefit of marriage.Issue:

W/N the marriage between David and Luzviminda is validHeld:

No. The Family Code provision exempting couples who have lived together as husband and wife for at least five years from procuring a marriage license, or in other words, the provision on legal ratification of marital cohabitation has requisites:

1. The man and the woman must have been living together as husband and wife for at least five years before the marriage;

2. The parties must have no legal impediments to marry each other;

3. The fact of absence of legal impediment between the parties must be present at the time of marriage;

4. The parties must execute an affidavit stating that they have lived together for at least five years;

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he found no legal impediment to their marriage.

In this case, David and Luzviminda were merely separated from their respective spouses at the time of their marriage. Therefore, there existed a legal impediment at the time of their marriage.

CHAPTER 3. Void and Voidable Marriages

VOID VOIDABLECan never be ratified Ratifiable by free

cohabitationAlways void Valid until annulledCan be attacked either directly or collaterally

Cannot be assailed collaterally; directproceeding only

No conjugal partnership; Only co-ownership

Conjugal partnership

Kinds of marriage impediments:o Diriment impediments – make the marriage

voido Prohibitive impediments – valid marriage but

possible criminal prosecutiono Absolute impediments – no capacity to marry

at allo Relative impediments – cannot marry certain

persons only

Art. 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good



faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without a license, except those covered by the preceding chapter;

(4) Those bigamous or polygamous marriages not falling under Art. 41;

(5) Those contracted thru mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Art. 53.

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (Amended by EO 227, July 17, 1987)

PSYCHOLOGICAL INCAPACITYo Condition of a person who does not have the

mind, will and heart for the performance of marriage obligations

o Must be forever This article was derived from the Canon Law

Code

Santos v CAGR 112019, January 4, 1995

Facts:

Leouel Santos and Julia Bedia were married on September 20, 1986. They lived with Julia’s parents in Iloilo City. A year after, they started having quarrels over a lot of different things. On May 18, 1988, Julia left for the US to work as a nurse. On January the following year, Julia called up Leouel and told him that she would come home after her contract expires on July of that same year, but she didn’t. When Leouel got the chance to go the US to undergo a training program for the AFP, he tried to look for her but couldn’t find her anywhere. When he got back to the Philippines in 1990, he filed for judicial annulment of marriage on the ground of psychological insanity, stating that Julia’s failure to notify her husband of her whereabouts and lack of concern for her him is tantamount to psychological incapacity. Issue:

W/N psychological incapacity lies in this caseHeld:

No. Psychological incapacity must be characterized by (1) gravity, which would make the party incapable of carrying out the ordinary duties required in marriage, (2) juridical antecedence, meaning it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage, and (3) incurability, or that even if it were curable, the cure would be beyond the means of the party involved. Psychological incapacity should refer to no less than a mental incapacity that causes a party to not be truly cognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. There is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of



personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.

Hernandez v CAGR 126010, December 8, 1999

Facts:Lucita Estrella Hernandez and Mario Hernandez

were married in Silang Catholic Parish Church in Silang Cavite on January 1, 1981. They have 3 children, namely Maie (1982), Lyra (1985), and Marian (1989). Lucita filed for annulment (RTC Brach 18, Tagaytay City) on the grounds of psychological incapacity. She alleged that Mario had no support for the family, and he continued doing bachelor things such as drinking sprees with his friends, gambling – cockfights, smoking, and he had illicit affairs with a number of women (one of which he got STD - Gonorrhea, and later on passed it to Lucita). Lucita averred that Mario was irresponsible, immature and unprepared for the duties of married life. With this, she asked for compensation every month (9k php) and she be awarded the custody of their children.Issue:

Whether or not the marriage of Lucita (petitioner) and Mario (private respondent) should be annulled on the ground of Mario’s psychological incapacity. Held:

No. The petitioner failed to show that Mario’s psychological incapacity existed before the marriage (Art 36 of the Family Code) whereas; psychological incapacity must exist during the solemnization of marriage. With this, she failed to show that Mario’s psychological incapacity deprived him of carrying out marital responsibilities. No clear evidence was

presented, which could have materialized such allegation. The person who files for annulment has the burden of proof to show the nullity of the marriage, in this case, it was not satisfied which is why the Court could not grant annulment. With this, it must be shown that these acts are manifestations of a disordered personality which make Mario completely unable to discharge the essential obligations of the marital state. Expert evidence may be given by qualified psychiatrists and clinical psychologists to strengthen the complaint.

Enrico v Heirs of Spouses MedinaceliGR 173614, September 28, 2007

Doctrine:A marriage celebrated during the effectivity of the

Family Code is subject to AM 02-11-10, stating that in cases of void marriages, the parties who may file suit are limited to the parties to the marriage in question. This is provided that such suit is commenced after March15, 2003, which is he effectivity date of the said AM. Thus, marriages celebrated during the effectivity of the Family Code, but whose respective petitions for judicial declaration of nullity of marriage were filed prior to March 15, 2003 are still within the ambit of the decision in Ninal v Bayadog, stating that parties in interest other than the parties to the marriage may file the petition.

De Dios Carlos v SandovalGR 179922, December 16, 2008

Doctrine:The grounds for declaration of absolute nullity of

marriage must be proved. No judgment on the



pleadings, summary judgment, or confession of judgment shall be allowed.

Republic v MolinaGR 108763, February 13, 1997

Facts:Roridel Molina filed a petition for declaration of

nullity of her marriage to Reynaldo Molina. Essentially, after her marriage, Reynaldo showed signs of “immaturity and irresponsibility” as a husband and a father since he preferred to spend more time with his peers and friends on whom he squandered his money; that he depended on his parents for aid and assistance, and was never honest with his wife in regard to their finances, resulting in frequent quarrels between them.

Sometime in February 1986, Reynaldo was relieved of his job and since then Roridel had been the sole breadwinner of the family. This has led to a very intense quarrel. Roridel then went to live with her parents in Baguio City. Reynaldo left his wife and their child and had since then abandoned them showing that he was psychologically incapable of complying with essential marital obligations and was highly immature and habitually quarrelsome individual.

Reynaldo admitted that he and Roridel could no longer live together but contended that their misunderstandings and frequent quarrels were due to: (1) Roridel’s strange behavior of insisting on maintaining her groups of friends even after their marriage; (2) Roridel’s refusal to perform some of her marital duties such as cooking meals; and (3) Roridel’s failure to run the household and handle their finances. Issue:

W/N psychological incapacity lies in this case

Held:No. There is no clear showing that the

psychological defect spoken of is an incapacity. The following guidelines are hereby handed down for the guidance of the bench and the bar:

1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity

2. The root cause of the psychological incapacity must be (a) medicinally or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts, and (d) clearly explained in the decision

3. The incapacity must be proven to be existing at the time of the celebration of the marriage

4. Such incapacity must also be shown to be medically or clinically permanent or incurable

5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage

6. The essential marital obligations must be those embraces in Arts. 68-71 of the Family Code as regards the husband and wife, as well as Arts. 220, 221 and 225 of the same Code in regards to parents and their children

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling or decisive, should be given great respect by our courts

8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State. No decision



shall be handed down unless the Solicitor General issues a resolution, which will be quoted in the decision, briefly stating therein his reasons for agreement or opposition, as the case may be, to the petition.

Ngo Te v Yu-TeGR 161793, February 13, 2009

Facts:Edward and Rowena met for the first time during

college. A romance ensued between the two. Three months later, Rowena asked Edward to elope. At first, Edward refused but the elopement still pushed through. The two left Manila and sailed to Cebu. Due to the depletion of Edward’s savings, they went back to Manila after a month. In addition, the two could not find jobs. Subsequently, Edward agreed to stay with Rowena at her uncle’s place after the latter threatened to commit suicide. Rowena’s uncle soon brought the two to court to get married; Edward was twenty-five and Rowena was twenty. From that time on, Edward was not allowed to go out unaccompanied, and was sternly warned not to leave Rowena. Edward, however, managed to escape. A month later, they finally parted ways. After four years, Edward filed a petition before the Regional Trial Court of Quezon City for the annulment of his marriage to Rowena on the basis of the latter’s psychological incapacity.

The petitioner, according to the psychological tests administered, is said to be still unsure and unready so as to commit himself to marriage. He is still found to be on the search of what he wants in life. The respondent, similarly, is said to be of the aggressive-rebellious type of woman. She is seen to be somewhat

exploitative in her plight for a life of wealth and glamour. Petitioner was found to be afflicted with dependent personality disorder while respondent is found to be afflicted with antisocial personality disorder. The trial court declared the marriage of the parties null and void on the ground that both parties were psychologically incapacitated to comply with the essential marital obligations. The Court of Appeals reversed and set aside the trial court’s ruling, declaring that petitioner failed to prove the psychological incapacity of respondent.Issue:

W/N psychological incapacity lies in this caseHeld:

Yes. The courts should interpret the provision on psychological incapacity (as a ground for the declaration of nullity of a marriage) on a case-to-case basis — guided by experience, the findings of experts and researchers in psychological disciplines and by decisions of church tribunals. By the very nature of Article 36, courts, despite having the primary task and burden of decision-making, must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties.

The evidence must show a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself. The Court mentions for emphasis that the presentation of expert proof presupposes a thorough and in-depth assessment of the parties by the psychologist or expert, for a conclusive diagnosis of a grave, severe and incurable presence of psychological incapacity. Parenthetically, the Court, at this point, finds it fitting to suggest the inclusion in the Rule on Declaration of Absolute Nullity



of Void Marriages and Annulment of Voidable Marriages an option for the trial judge to refer the case to a court-appointed psychologist/expert for an independent assessment and evaluation of the psychological state of the parties. This will assist the courts, who are no experts in the field of psychology, to arrive at an intelligent and judicious determination of the case. The rule, however, does not dispense with the parties’ prerogative to present their own expert witnesses.

The Court, however, is not suggesting the abandonment of the Molina doctrine in this case. It simply declares that there is a need to emphasize other perspectives which should govern the disposition of petitions for declaration of nullity under Article 36. At the risk of being redundant, the Court reiterates once more the principle that each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts.

Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half-blood.

Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives, whether legitimate or

illegitimate, up to the 4th civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with intention to marry the other, killed that other person’s spouse, or his or her own spouse.

Other void marriages:o Play, drama, movieo Same-sex marriageso Marriages in jesto Common-law marriages

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by RA 8533, dated Feb. 23, 1998)



Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of marriage on the basis solely of a final judgment declaring such previous marriage void.

Under the Family Code, there mist be a judicial declaration of the nullity of a previous marriage before a party thereto can enter into a second marriage

This article is applicable to remarriages entered into after the effectivity of the Family Code on Aug. 3, 1988 regardless of the date of the first marriage

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of he Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

Judicial declaration of presumptive death is now authorized for purposes of remarriage

This is the only case in the Family Code of an extrajudicial termination of marriage

This article elucidates a TERMINABLE BIGAMOUS MARRIAGE

The first marriage, upon the celebration of the subsequent marriage, is deemed suspended

When the absent spouse has been absent for more than 7 years, there is no need of judicial declaration of his presumptive death for purposes of remarriage

If the disappearance of the spouse is due to the dangerous circumstances under Art. 391, instead of the ordinary 4-year period, 2 years absence will suffice for the declaration of presumptive death:o On board a vessel lost during a sea voyage,

or an airplane which is missing, who has not been heard of for four years since the loss of said vessel or airplane

o Member of the armed forces, who has taken part in war, and has been missing for 4 years

o Danger of death under other circumstances The belief that one spouse is already dead must

be well-founded and must be based on reasonably diligent search and not on mere suspicion

Upon the contraction of the subsequent marriage, liquidation of the property follows Arts. 103 and 130 of the Family Code:o The present spouse has to file for liquidation

proceedings within 6 months:



If liquidation was filed, the governing law as to the property of the spouses would be the marriage settlement

If no liquidation was filed, the governing property regime would be complete separation of property

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of he residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such a fact is disputed.

Upon the filing of the affidavit of reappearance, the judicial declaration of presumptive death will be rendered functus officio

The subsequent marriage discussed in Art. 41 is automatically terminated without any need of judicial pronouncement, upon the recording of the affidavit of reappearance of the absent spouseo EXCEPT: When the previous marriage had

been judicially annulled or decalred void ab initio

Republic v Nolasco220 SCRA 20

Facts:Nolasco, a seaman, and Janet Monica Parker met

and fell in love in a bar in England during one of the former’s ship’s port calls. From that day until six months thereafter, Janet lived with Nolasco until they returned to the latter’s home in Antique. They married, after Nolasco’s seaman contract expired, in Catholic rites. After the celebration of the marriage, Nolasco obtained another employment contract and left Janet with his parents in Antique. Sometime in January, 1983, while working overseas, he received a letter from his mother informing him that Janet had given birth to a son and that she had left. Nolasco says that he immediately asked permission to go home, but he was able to get back only on Nov. of the same year.

According to Nolasco, that he looked for her whenever his ship docked in England, but his efforts were fruitless. He also stated that he sent letters addressed to Janet to the address of the bar where they first met, but that every single one of them were returned to him.

Nolasco then filed for judicial declaration of presumptive death.Issue:

W/N a judicial declaration of presumptive death may be validly issuedHeld:

No. There are four requisites for the declaration of presumptive death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where



there is danger of death under the circumstances laid down in Art. 391, CC

2. That the present spouse wishes to remarry3. That the present spouse has a well-founded

belief that the absentee is dead, and4. That the present spouse files a summary

proceeding for the declaration of presumptive death of the absentee

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate and their custody and support in case of dispute shall be decided by the court in a proper proceeding;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or the conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage, or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession.

NET PROFITS refer to the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution

Donations in consideration of marriage (donations propter nuptias):o If the donee is in bad faith, invalid donationo If the donor is in bad faith, valid donation

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law



This article refers to another instance of a void marriage when both spouses in the subsequent marriage acted in bad faith

__________________MIDTERMS LINE___________________

Art. 45. The marriage may be annulled for any of the following causes, existing at the time of the marriage:

(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

(2) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife;

(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely

cohabited with the other as husband and wife;

(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

Annulment is an action in rem as it concerns the status of parties and binds the whole world

Under RA 8369, Family Court were created to assume jurisdiction over cases involving family relations such as annulment, decree of nullity, support, adoption, etc.

Parents are not authorized to ratify the marriage

Insanity: A manifestation, in language or conduct, of disease or defect of the brain, or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or disordered function of the sensory or of the intellectual faculties, or by impaired or disordered volition



o The test is whether the party was capable of understanding the nature and consequences of the marriage at the time of the celebration

o It is not whether the parties are possessed of sufficient mentality to measure up to the responsibility incurred by bringing offsprings into the world, but whether there is a realization of what is being done and to consent thereto

In general, there is fraud when, thru insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to

There is violence when in order to wrest consent, serious or irresistible force is employed; there is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, ascendants, or descendants, to give his consent; undue influence is having control over another’s will

Impotence or impotentia copulandi refers to lack of power of copulation and not to mere sterilityo Kinds of impotency:

Absolute or incurable – absence of male organ; old age

Temporary or curable – small vulva opening; mumps; etc

Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

(3) Concealment of a sexually-transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

This Article should be read in connection with Art.45 (3) of the Family Code

The enumeration here of possible grounds is exclusive, meaning that no other kind of fraud is ground for the annulment of the marriage



Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

(1) For causes mentioned in Number 1 of Article 45 by the party whose parent of guardian did not give his or her consent, within five years after attaining the age of twenty-one; or by the parent or guardian or person having legal charge of the minor, at any time before such party reached the age of twenty-one;

(2) For causes mentioned in Number 2 of Article 45, by the sane spouse who had no knowledge of the other’s insanity; by any relative, guardian or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity;

(3) For causes mentioned in Number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;

(4) For causes mentioned in Number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;

(5) For causes mentioned in Numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage.

Persons who may sure for annulment of the marriage, and prescriptive periods:o NON-AGE

Persons: Before party becomes 21 – HIS OR HER

PARENT After party becomes 21 – THE PARTY

HIMSELF OR HERSELF Period:

Within 5 years after reaching 21o UNDOUNDNESS OF MIND

Persons: The spouse who did not know of the

other’s insanity The relatives or guardians of the

insane Period:

At any time before the death of either spouse

o FRAUD Persons:

The injured party Period:

Within 5 years after the discovery of the fraud

NB: If both committed fraud, neither can sue

o FORCE OR INTIMIDATION OR UNDUE INFLUENCE Persons:




Within 5 years from the time the force or intimidation or undue influence ceased

o IMPOTENCE Persons:


Within 5 years after the celebration of the marriage

o SEXUALLY TRANSMISSIBLE DISEASE Persons:


Within 5 years after the celebration of the marriage

In general, the period for annulment of marriage is five years

When action for annulment will not prosper:o If persons other than those specified filed the

caseo When action was filed after prescription had

set ino When the injured party freely cohabited with

the other as husband and wife

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.

Stipulation of facts – Facts agreed upon and signed by both the husband and wife

Confession of judgment – A statement by the erring spouse to the effect that he or she is not against the annulmento Kinds:

Confession of judgment by warrant of attorney – Authority given by defendant to plaintiff’s attorney allowing the latter to tell the court that the defendant confesses or admits the plaintiff’s action to be true and just; done even before the action is actually filed

Confession of judgment or judgment by confession cognovit actionem – That rendered where, instead of defending himself, the defendant chooses to acknowledge the rightfulness of the plaintiff’s action

The Rules of Court prohibit declaration of defaults in actions for declaration of nullity, or annulment, or legal separation

Summary judgment is prohibited in an action for annulment of marriage

Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the court shall provide for the support of the spouses and the custody and support of their common children.



The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided in Title IX. It shall also provide for appropriate visitation rights of the other parent.

The court shall provide for the support of the spouses and their common children.o The court must consider the custody of the

children taking into consideration their moral and material welfare and their free choice of the parent they wish to stay with

o The support to be considered by the court must come from the properties of the absolute community of conjugal partnership In a regime of absolute separation of

property, support to the common children should come from the separate properties of the spouses in proportion to their income

Support of illegitimate children of either spouse shall be governed by the separate property of the parent concerned and if none, the absolute community or conjugal partnership if financially capable, shall advance the support, subject to deduction from the share of the spouse concerned upon liquidation

o The court’s duty to make provisions for support during the pendency of the case will be exercised only if there are no adequate provisions in a written agreement between the spouses

Malcamp-Sin v SinGR 137590, March 26, 2001

Facts:Florence Malcamo-Sin and and Philipp Sin, a

Portugueses citizen, were married at St Jude Catholic Parish on Jan. 4, 1987. On Sept. 20, 1994, Florence filed a complaint for declaration of nullity of marriage, which was dismissed on June 16, 1995 by the trial court. On Dec. 19, 1995, Florence filed a notice of appeal with the CA, which was also dismissed, which prompted Florence to file this appeal with the SC.Issue:

W/N procedure was correctly followed in the lower courtHeld:

No. throughout the trial in the lower court, the State did not participate in the proceedings. While the fiscal filed a manifestation stating that he found no collusion between the parties, he did not actively participate therein Other than entering his appearance at certain hearings of the case, nothing more was heard from him.

The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro-forma compliance. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well.

Tuason v CA256 SCRA 158

Facts:



Maria Tuason filed a petition for annulment or declaration of nullity of her marriage to Emilio Tuason in 1989. She alleged that from the time of the celebration of their marriage, Emilio was already psychologically incapacitated to comply with the essential marital obligations which became manifest afterwards and resulted in violent fights between them.

Emilio countered by stating that he and his wife were a normal married couple during the first 10 yrs of their marriage but that they began to have serious problems when his wife did not accord him the respect and dignity due him as a husband.

During trial, they each presented witnesses, and after Maria rested her case, when it was time for Emilio to present his, his counsel repeatedly filed motions for postponement, which ended up with the trial court giving due course to case via Maria’s evidences. Issue:

W/N procedure under the FC was followed in this caseHeld:

No, but there was no need to. The facts of the case do not call for a strict application of Art 48 of the FC. For one, Emilio was not declared in default for failure to answer, since he did file his answer and contested the cause of action alleged by his wife. He actively participated in the proceedings. It is crystal clear that the litigation was characterized by a no-holds barred contest and not by collusion.

The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Emilio’s vehement opposition to the annulment proceedings negated the

conclusion that collusion existed between the parties, hence, the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court.

Art. 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

Legitime – Properties which a person cannot dispose of because such are reserved for his compulsory heirs

The property relations of void marriages are governed by Articles 147 and 148



The purpose of the third paragraph of this article is to prevent fraud of creditors

Art, 51. In said petition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in case, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitimes.

Final judgment – 15 days from when the parties receive notice of judgment, provided no appeal was taken

In said partition, the value of the presumptive legitimes of all common children are computed as of the date of the final judgment of the trial court, and shall be delivered in cash, property, or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons.

The appropriate civil registry in this case is either the place of judgment or the place of the solemnization of marriage

Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately preceding article; otherwise, the subsequent marriage shall be null and void.

Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of marriage under Article 36 has become final and executory, shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

This article is an exception to the general rule that children conceived and born during a void marriage are considered illegitimate

Title II. – LEGAL SEPARATION

Transitional Rules on Absolute Divorce:



o Absolute Divorce under Act 2710 or The Divorce Law: If granted validly before August 30, 1950

(effectivity date of NCC), the same remains valid today

If pending merely on Aug. 30, 1950, the same would be allowed to continue until final judgment; this is true even if the final judgment on the crime (adultery or concubinage, which are the only grounds) was rendered only after Aug. 30, 1950, because what is important is that the crime was committed BEFORE said date

o Absolute Divorce under EO 141 which was promulgated during the Japanese occupation: If granted validly before Oct. 23, 1944

(date of freedom from Japan), the same will be considered as valid

If merely pending on Oct. 23, 1944, it would be allowed to continue ONLY if the action was based on adultery or concubinage

Rules for Absolute Divorce TODAY both under the Civil Code and the Family Code:o If the action is brought here in the

Philippines: Between Filipinos – WILL NOT PROSPER Between foreigners – WILL NOT PROSPER Between a Filipino and a foreigner – WILL

NOT PROSPERo If the action is brought in a foreign court:

Between Filipinos – will not be recognized here even if allowed by the foreign court,

and even if the ground be either adultery or concubinage

Between foreigners – will be recognized here provided: The foreign court has jurisdiction to

grant the absolute divorce The divorce is recognized as valid by

the personal law of the parties involved Between a Filipino and a foreigner – if

obtained by the foreigner and valid according to his personal law, then will be recognized for both the foreigner and the Filipino

Art. 55. A petition for legal separation may be filed on any of the following grounds:

(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;



(5) Drug addiction or habitual alcoholism of the respondent;

(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

(8) Sexual infidelity or perversion;(9) Attempt by the respondent

against the life of the petitioner; or

(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.

For purposes of this Article, the term “child” shall include a child by nature or by adoption.

While in the Civil Code, there were only three grounds for legal separation, there are ten grounds enumerated in the Family Code

Mere preponderance of evidence, not guilt beyond reasonable doubt, will suffice to prove the existence of any of the grounds except in ground no. 4

A decree of legal separation, on the ground of concubinage as a form of sexual infidelity, may issue upon proof by preponderance of evidence; no criminal proceedings or conviction is necessary

Art. 56. The petition for legal separation shall be denied on any of the following grounds:

(1) Where the aggrieved party has condoned the offense or act complained of;

(2) Where the aggrieved party has consented to the commission of the offense or act complained of;

(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;

(4) Where both parties have given ground for legal separation;

(5) Where there is collusion between the parties to obtain the decree of legal separation; or

(6) Where the action is barred by prescription

Defenses in Legal Separation:o Condonation

This means forgiveness, express or implied

It comes after, not before the offense but must come before the filing of the complaint

Each illicit sexual act is a separate act of sexual infidelity, therefore, condonation of one act does not necessarily imply condonation of the others

o Consent May be express or implied Given before the act and before the filing

of the complaint



o Connivanceo Mutual guilt or Recrimination

Both parties being in pari delicto, there is no offended spouse who deserves to being the action

o Collusion An agreement whereby one will pretend

to have committed the ground relied upono Prescription

If one party dies during the pendency of the case, the same should be dismissed since the action is purely a personal one

Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause.

Prescription may not be alleged in legal separation or annulment proceedings

Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.

Cooling-off period

Art. 59. No legal separation may be decreed unless the court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable.

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.

In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence found is not fabricated or suppressed.

The proof may be either direct or circumstantial evidence

The case may prosper even if defendant does not appear

Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.

The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court.

Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children.

AM 02-11-12, March 15, 2003

Section 2. Spousal Support. - In determining support for the spouses, the court may be guided by the following rules:(a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership.


Persons and Family Relations Atty. Jacqueline Lopez(b) The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage.(c) The court may likewise consider the following factors: (1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse's future earning capacity; (3) the-duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking into account that spouse's earning capacity, earned and unearned income, assets, and standard of living; and (10) any other factor the court may deem just and equitable.(d) The Family Court may direct the deduction of the provisional support from the salary of the spouse.Section 3. Child Support. - The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership. Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient. In determining the amount of provisional support, the court may likewise consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the child; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary contributions that the parents will make toward the care and well-being of the child. The Family Court may direct the deduction of the provisional support from the salary of the parent.Section 4. Child Custody. - In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child. The court may likewise consider the following factors: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; (c) the child's health, safety, and welfare; (d) any history of child or spousal abase by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit. The court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3} to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child

over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the child's actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child. The custodian temporarily designated by the" court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents.Section 5. Visitation Rights. - Appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court. .Section 6. Hold Departure Order. - Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court. The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court. The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order issued within twenty-four hours from the time of its issuance and through the fastest available means of transmittal. The hold-departure order shall contain the following information:(a) the complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined;(b) the complete title and docket number of the case in which the hold departure was issued;(c) the specific nature of the case; and(d) the date of the hold-departure order. If available, a recent photograph of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined should also be included. The court may recall the order. motu proprio or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the child.Section 7. Order of Protection. - The court may issue an Order of Protection requiring any person:(a) to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court;(b) to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded;(c) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child;(d) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods;(e) to permit a designated party to enter the residence during a specified period of time in order to take persona! belongings not contested in a proceeding pending with the Family Court;(f) to comply with such other orders as are necessary for the protection of the child.


Persons and Family Relations Atty. Jacqueline LopezSection 8. Administration of Common Property. - If a spouse without just cause abandons the other or-fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration.

RA 9262 (Anti-Violence Against Women and Their Children)Sec. 28. Custody of children. – The woman victim of violence shall be entitled to the custody and support of her child/children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise.

A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of a woman who is suffering from Battered woman syndrome.

Art. 63. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;

(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and

(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law.

This article applies regarding some effects after the grant of a decree of legal separation

Neither party can have a paramour The married couple cannot insist on sexual

intercourse with each other

Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.



The action to revoke the donations under this Article must be brought within five years from the time the decree of legal separation has become final.

Two things that may be revoked by the innocent spouse:o Donations made in favor of the offending

spouseo Designation of the offending spouse as

beneficiary in the insurance contracts of the innocent spouse

Art. 65. If the spouses should reconcile, the corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation.

If the parties decide to reconcile after a decree of legal separation has been given, but they do not file the joint manifestation referred to in this article, such gives rise to a de facto reconciliation wherein the effects of reconciliation enunciated in the next article will not apply

Art. 66. The reconciliation referred to in the preceding Article shall have the following consequences:

(1) The legal separation proceedings, if still pending, shall thereby be terminated in whatever stage; and

(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.

The Court order containing the foregoing shall be recorded in the proper civil registries.

Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify:

(1) The properties to be contributed anew to the restores regime;

(2) Those to be retained as separate properties of each spouse; and

(3) The names of all their known creditors, their addresses and the amounts owing to each.

The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of properties.



The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor’s claims.

Title III. – RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.

Personal obligations of husband and wife:o Duty to live together

Cohabitation or consortium The wife may establish a separate

residence or domicile in the ff. cases: If husband continually indulges in illicit

relations If husband is immoderate or barbaric in

his demands for sexual intercourse If husband grossly insults her If husband maltreats her If she is driven out of their home by the

husband and threatened with violence if she returns

If husband continually gambles, refuses to give support, and insults her

If husband is a vagabond, no fixed home

If husband insists on living with his parents

If wife refuses unjustifiably to live with her husband, the court will admonish but will not order her to return; husband may refuse to grant support

o Duty to observe mutual love, respect and fidelity Instead of obedience, the law now

requires mutual respect Infidelity may be a ground for legal

separation, or disinheritance, or for unworthiness in matters of succession or for criminal liability under the provisions of the RPC

o Duty to render mutual help and support Mutual help includes the right to defend

the life and honor of the other spouse; moral assistance

Support includes medical attendance Other consequences of marriage:o Marriage emancipates a person from

parental authorityo Husband and wife can chastise or reprimand

each other, but may not inflict force, except when either catches the other in the act of sexual intercourse with a stranger

o MARRIAGE PRIVILEGE RULE: The husband cannot be examined for or against his wife without her consent, and vice versa, except in a civil case by one against the other, or criminal case for a crime committed by one against the other

o MARITAL COMMUNICATION RULE: The husband or the wife, during and after marriage, cannot be examined without the consent of the other as to any



communication received in confidence by the other during the marriage

o The wife should use the husband’s surname Abandonment – neglect and refusal to perform

the filial and legal obligations of love and support

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if the latter should have lived abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.

Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from their separate properties.

Art. 71. The management of the household shall be the right and duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70.

Art. 72. When one of the spouses neglects his or her duty to the conjugal union or commits acts

which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.

Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.

In case of disagreement, the court shall decide whether or not:

(1) The objection is proper; and(2) Benefit has accrued to the family

prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.

Title IV. – PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE


Art. 74. The property relations between husband and wife shall be governed in the following order:



(1) By marriage settlements executed before the marriage;

(2) By the provisions of this Code; and

(3) By the local custom.

A marriage settlement is a contract entered into by the future spouses fixing the matrimonial property regime that should govern during the existence of the marriage

Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.

Matrimonial property regime that may be agreed upon in the marriage settlement:o Absolute community regime – almost

everything is owned in commono Relative community regime or the conjugal

partnership of gains – everything earned during the marriage belongs to the conjugal partnership

o Complete or absolute separation – each owns his earnings

o Any other regime Requisites for a marriage settlement:o Must be made before the celebration of

marriage, including modifications, except

conversion into the complete separation of property, which would be allowed provided that there is judicial approval and no prejudice to creditors

o Must not contain provisions contrary to law, good morals, good customs, public order, and public policy, or against the dignity of either spouse

o Must generally confine itself only to property relations

o Must be in writingo Capacity to contract

Art. 76. In order that any modifications on the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136.

Any modification in the MS may be deemed valid provided they are made before the celebration of the marriage, subject to the ff. provisions:o Art. 66 (on consequences of reconciliation of

the spouses in legal separation)o Art. 67 (on conditions for revival of the

former property regime in legal separation)o Art. 128 (on petition for sole

administratorship of the conjugal partnership in case of abandonment by a spouse or failure to comply with his or her obligations to the family)

o Art. 135 (grounds for judicial separation of property)



o Art. 136 (joint petition of spouses for dissolution of property regime governing their relations

Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property.

This article sets forth the requisites of a MS as well as any of its modifications in correlation with Art. 81:o Must be in writingo Must be signed by the parties theretoo Executed before the celebration of the

marriageo Marriage must be celebratedo Duly registered in the civil registry and

registry of property in order to bind third persons

Art. 78. A minor who according to law may contract marriage may also execute his or her marriage settlements, but they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code.

Art. 79. For the validity of any marriage settlement executed by a person upon whom a

sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto.

Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence.

This rule shall not apply:

(1) Where both spouses are aliens;(2) With respect to the extrinsic

validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and

(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.

Unless stipulated otherwise in the MS, this article provides that Philippine laws shall govern the property relations of the spouses (at least one of the parties is Filipino) wherever they reside or regardless of the place of celebration of their marriage



Art. 81. Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriage shall be valid.

CHAPTER 2. Donations by Reason of Marriage

Art. 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses.

Requisites for a valid donation propter nuptias:o Must be made before the celebration of the

marriageo Must be made in consideration of the sameo Must be made in favor of one or both of the

future spouses

Art. 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following articles.

Generally, all rules on ordinary donations apply to donations propter nuptias

Art. 84. If the future spouses agree upon a regime other than the absolute community of

property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.

Art. 85. Donations by reason of marriage of property subject to encumbrance shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess.

Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:

(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;

(2) When the marriage takes place without the consent of the parents or guardian, as required by law;

(3) When the marriage is annulled, and the donee acted in bad faith;

(4) Upon legal separation, the donee being the guilty spouse;



(5) If it is with a resolutory condition and the condition is complied with;

(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general.

Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage.

This article covers donations propter nuptias between:o Lawfully married coupleso Common law spouses

Every grant of gratuitous advantage between the spouses are void

Moderate donations or gifts between spouses are valid, if given on the occasion of a family rejoicingo What is moderate depends on the financial

status of the people concerned Reasons for the general prohibition of donations

between spouses:o To protect creditorso To prevent the weaker spouse from being

influences by the stronger spouse

o To prevent an indirect violation of the rule prohibiting modifications of the MS during the existence of the marriage

Only those prejudiced by the transfer may assail the validity of the donation

CHAPTER 3. System of Absolute Community

Sec. 1. – GENERAL PROVISIONS

Art. 88. The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void.

Art. 89. No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property.

When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits.

Waiver of the rights, interest, shares and effects can be made during the existence of the



marriage only in a judicial separation property which also takes place in a legal separation

Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter.

Sec. 2. – WHAT CONSTITUTES COMMUNITY PROPERTY

Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.

Art. 92. The following shall be excluded from the community property:

(1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property;

(2) Property for personal and exclusive use if either spouse; however, jewelry shall form part of the community property;

(3) Property acquired before the marriage by either spouse who

has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property.

Reasons for the separate properties mentioned in this article:o Par. 1 – the desire of the gratuitous giver

must be respectedo Par. 2 – the reason here is obviouso Par. 3 – This is to protect the rights or

legitimes of the children or other descendants of the prior marriage; said children or descendants must be legitimate

Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom.

Before the presumption in this article applies, evidence must be shown that the disputed properties have been acquired during the marriage

Sec. 3. – CHARGES UPON AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY

Art. 94. The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate children of either spouse; however, the suppose of



illegitimate children shall be governed by the provisions of this Code on Support;

(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;

(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property;

(5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse used by the family;

(6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement;

(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family;

(8) The value of what is donated or promised by both spouses in

favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement;

(9) Antenuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and

(10) Expenses of litigation between the spouses unless the suit is found to be groundless.

If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties.

Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law shall be



borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property.

Sec. 4. – OWNERSHIP, ADMINISTRATION, ENJOYMENT AND DISPOSITION OF THE COMMUNITY PROPERTY

Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construes as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

GR: Joint administration and enjoyment by both spouseso Exception: In case of disagreement, husband

prevails, subject to recourse to the court by the wife for the proper remedy

Art. 97. Either spouse may dispose by will of his or her interest in the community property.

Art. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasion of family rejoicing or family distress.

Sec. 5. – DISSOLUTION OF ABSOLUTE COMMUNITY REGIME

Art. 99. The absolute community terminates:

(1) Upon the death of either spouse;(2) When there is a decree of legal

separation;(3) When the marriage is annulled or

declared void; or(4) In case of judicial separation of

property during the marriage under Articles 134 to 138.

Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute community except that:



(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

(3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s absence.

This article refers to a de facto separation and in the proper case there can be:o Loss of supporto Judicial authorization instead of marital

consento Subsidiary solidary liability of the separate

propertyo Judicial authority to administer or encumber

the separate property of the other spouse

Art. 101. If a spouse without just cause abandons the other or fails to comply with his or

her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

Sec. 6. – LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS AND LIABILITIES

ART. 102. Upon dissolution of the absolute community regime, the following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid



out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

(4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share as provided in this Code. For purposes of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be

delivered upon partition, in accordance with Article 51.

(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.

Paragraph (1) of this article regarding the making of an inventory includes appraisal of the value of the community property

The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage, or in default of children, the innocent spouse (Art. 43 (2), NCC)

The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the



absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Art. 43 (2) (Art. 63 (2), NCC)

Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially, within one year from the death of the deceased spouse. If upon the lapse of the one year period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Art. 104. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined upon such proof as may be considered according the rules of evidence. In case of doubt as to which community the existing properties belong, the

same shall be divided between the different communities in proportion to the capital and duration of each.

CHAPTER 4. Conjugal Partnership of Gains

Sec. 1. – GENERAL PROVISIONS

Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application.

Conjugal Partnership of Gains – formed by a husband and his wife whereby they place in a common fund the fruits of their separate property, and the income from their work or industry, the same to be divided between them equally, as a general rule, upon the dissolution of the marriage or the partnership

Art. 106. Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts, or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements.



Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains.

The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void (Art. 88, FC)

No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property.When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Art. 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (Art. 89, FC)

Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements.

Sec 2. – ECLUSIVE PROPERTY OF EACH SPOUSE

Art. 109. The following shall be the exclusive property of each spouse:

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by gratuitous title;

(3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and

(4) That which is purchased with exclusive money of the wife or of the husband.

Art. 110. The spouses retain the ownership, possession, administration, and enjoyment of their exclusive properties.

Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place where the property is located.

Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same.

Art. 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse.



Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouses as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper.

Accretion – If a spouse waives the donation, his or her share shall add to the other’s share

Art. 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee spouse, whenever they have been advanced by the conjugal partnership of gains.

Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs, and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case.

Test:o If onerous:

Automatically pertains to the CPGo If gratuitous:

Check the intent of the donor re: donee (if one spouse only or to CP)

Sec. 3. – CONJUGAL PARTNERSHIP PROPERTY

Art. 116. All property acquired during the marriage whether the acquisition appears to have been made, contracted or registered in the name

of one or both spouses, is presumed to be conjugal unless the contrary is proved.

Art. 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;

(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;

(3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse;

(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found;

(5) Those acquired through occupation such as fishing or hunting;

(6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and



(7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse.

Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership.

Art. 119. Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership.

Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules:

When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement; otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement.

In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership.

Sec. 4. – CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP

Art. 121. The conjugal partnership shall be liable for:

(1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code in Support;

(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the



conjugal partnership of gains, or by both spouses or by one of them with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;

(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property;

(5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse;

(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement;

(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family;

(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; and

(9) Expenses of litigation between the spouses unless the suit is found to be groundless.

If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.

However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what he has been paid for the purposes above-mentioned.

Art. 123. Whatever may be lost during the marriage in any game of chance, or in betting,



sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership property.

Sec. 5. – ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress.

Sec. 6. – DISSOLUTION OF CONJUGAL PARTNERSHIP REGIME

Art. 126. The conjugal partnership terminates:

(1) Upon the death of either spouse;(2) When there is a decree of legal

separation;(3) When the marriage is annulled or

declared void; or(4) In case of judicial separation of

property during the marriage under Articles 134 to 138.

If CP is dissolved, the dissolution should be registered in the Registry of Property so as not to prejudice innocent third parties

Even before the dissolution or liquidation of the CP, a co-owner thereof may already bring an action to protect his or her interest therein

Art. 127. The separation in fact between husband and wife shall not affect the regime of conjugal partnership, except that:



(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

(3) In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share.

The law recognized the EXISTENCE, not the LEGALITY of a separation de facto

Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such

precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital parental, or property relations.

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

Sec. 7. – LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES

Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof.



(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121.

(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.

(7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a

different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered upon partition in accordance with Article 51.

(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.

In the inventory, there should be a separate listing of the conjugal and separate assets

Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.



If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each.

Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property on the conjugal partnership, and other matters which are not expressly determined in this Chapter.

Applicable to liquidation of the conjugal partnership are the rules on appraisal and sale of property under the Rules of Court as well as other pertinent rules on matters not covered by the FC

Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them.

The actual property remaining after liquidation determines the assets of the CP

CHAPTER 5. Separation of Property of the Spouses and Administration of Common Property By One Spouse During the Marriage

Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause.

This article is applicable where the property regime of the spouses is other than a complete separation of property



Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;

(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;

(5) That the spouse granted the power of administration in the marriage settlements has abused that power; and

(6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property.

Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties.

All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest.

Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code.

During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children.

Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply.

There is an assumption here that after liquidation, properties that respectively pertain to the spouses have already been determined



Art. 139. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries of property.

Record:o The petition for separation of propertyo The final judgment granting the same

In:o Local Civil Registryo Registries of Property where properties are

located

Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors.

Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree reviving the property regime that existed between them before the separation of property in any of the following instances:

(1) When the civil interdiction terminates;

(2) When the absentee spouse reappears;

(3) When the court, being satisfied that he spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration;

(4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other;

(5) When parental authority is judicially restored to the spouse previously deprived thereof;

(6) When the spouses who have separated in fact for at least one year, reconcile and resume common life; or

(7) When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted.

The revival of the former property regime shall be governed by Article 67.

Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse:

(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;

(3) When one spouse is sentences to a penalty which carries with it civil interdiction; or



(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.

If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator.

This article deals with administration by on espouse alone of the separate properties.

CHAPTER 6. Regime of Separation of Property

Art. 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be suppletory.

If no marriage settlement was made, there can be separation of property during the marriage without judicial approval

If in the MS the future spouses agreed on the system of CSP, this cannot later on be converted during the marriage into the CPG; but the CPG can be converted into the CSP provided there is judicial approval

Art. 144. Separation of property may refer to present or future property or both. It may be total or partial. In the latter case, the property not agreed upon as separate shall pertain to the absolute community.

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property.

Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties.

The liability of the spouses to creditors for family expenses shall, however, be solidary.

System of Separation of Property:o It is that matrimonial property regime agreed

upon in the MS by the future spouses whereby each spouse shall own, dispose of, possess, administer, and enjoy hi or her own separate estate and earnings without the consent of the other, with each spouse proportionately bearing the family expenses

CHAPTER 7. Property Regime of Unions Without Marriage

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them



in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by the in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

This article applies only if:

o Both must be capacitated to marry each other; and

o There is no marriage, or the marriage is void

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Title V. – THE FAMILY

CHAPTER 1. The Family as an Institution

Art. 149. The family, being the foundation of the nation, is a basic social institution which public



policy cherishes and protects, Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect.

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. (Art. II, Sec. 12, 1987 Constitution)

Art, 150. Family relations include those:

(1) Between husband and wife;(2) Between parents and children;(3) Among brothers and sisters,

whether of the full or half-blood.

Relatives by affinity are not included

Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.

The trial court is required to scrutinize a compromise agreement very carefully and with circumspection I order to prevent misunderstanding and controversy in its implementation

CHAPTER 2. The Family Home

Art. 152. The family home, constituted jointly by the husband and wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated.

Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of the family; and

(2) Their parents, ascendants, descendants, brothers and



sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support.

Art. 155. The family home shall be exempt from execution, forced sale or attachment except:

(1) For nonpayment of taxes;(2) For debts incurred prior to the

constitution of the family home;(3) For debts secured by mortgages

on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building.

Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter’s consent. It may also be constituted by an unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home.

Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas.

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter’s spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide.

Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefore. This rule shall apply regardless of



whoever owns the property or constituted the family home.

Art. 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs, The excess, if any, shall be delivered to the judgment debtor.

Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a persons may constitute or be the beneficiary of, only one family home.

Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable.

Title I. – PATERNITY AND FILIATION

CHAPTER I. Legitimate Children

Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate.

Paternity or maternity – Civil status relationship of the father or mother to the child

Filiation – Civil status relationship of the child to the father or mother

The FC governs paternity and filiation and shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights

While paternity must be judicially proved, filiation may be established by holographic as well as natural wills

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be



recorded in the civil registry together with the birth certificate of the child.

Requirements for a test tube baby to be legitimate:o Authorized or ratified such inseminationo In a written instrumento Executed and signed by parents before the

birth of the child Artificial insemination is a medical procedure by

which the semen is introduced into the vagina by means other than copulation for the purpose of protection

Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code.

Art. 166. Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:a. The physical incapacity of the

husband to have sexual intercourse with his wife;

b. The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

c. Serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

Reason for the 120 days of the 300 days which immediately preceded the birth of the child:o 300 – 120 =180 or 6 months, which may be

at the earliest, the intrauterine life of the child. On the other hand, if the child was

conceived on the 1st day of the 120 days, it must have has an intrauterine existence of 300 days or 10 months, which may be the maximum duration of its existence in the maternal womb

Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.



Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;

(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

Requisites for the child to be child of the first marriage:o The child must have been born within 300

days after the termination of the first marriage; and

o Said child must have been born within (or before the end of) 180 days after the solemnization of the second marriage

Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.

Following the termination of the marriage, no presumptive rule exists with respect to a child born after 300 days

This article may be considered as an exception to the rule set forth in Art. 164 that children conceived or born during the marriage of the parents are legitimate

Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.



The reckoning point is the knowledge of the birth of the child OR the recording of its birth in the civil registry

This art. is not applicable to an action to claim inheritance as legal heirs of the deceased

Art. 171. The heirs of the husband may impugn the filiation of the child within the period described in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband.

“HEIRS” – includes testamentary, voluntary, compulsory, or legal heirs

CHAPTER 2. Proof of Filiation

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument

and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

Filiation is the judicial determination of paternity

A filiation proceeding is a special statutory proceeding, criminal in form, but in the nature of a civil action to enforce a civil obligation or duty specifically for the purpose of establishing parentage and the putative father’s duty to support his illegitimate child

Documentary evidence not included as evidence in proof of filiation:o Photographso Letterso Birth Certificates not signed by the alleged

fathero Baptismal Certificates which are evidence

only to prove the administration of the sacraments on the dates therein specified

Means allowed by the Rules of Court:o An act or declaration concerning pedigreeo Family reputation or tradition concerning

pedigree



o Common reputation respecting pedigreeo Judicial admissiono Admissions of a partyo Admission by silenceo Oral evidence may be admitted if the needed

document cannot be presented “Continuous” does not mean that the

possession of status shall continue forever but only that it shall not be of an intermittent character while it continues

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child due during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.

Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames;

(2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and

(3) To be entitled to the legitime and other successional rights granted to them by the Civil Code.

SUPPORTo Cannot be renounced or transmitted to a 3rd

persono Cannot be compensatedo Everything that is indispensable for

sustenance, dwelling, clothing, and medical attendance, according to the social position of the family Also includes education

LEGITIME of a legitimate child:o HALF of the parent’s estate

Number of childreno Must always be given

CHAPTER 3. Illegitimate Children

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime



of each illegitimate child shall consist of one-half of the legitime of a legitimate child.

CHAPTER 4. Legitimated Children

Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.

LEGITIMATED CHILD – an illegitimate child who is given the rights of a legitimate child provided:o He was conceived and born outside wedlock

of parents who AT THE TIME OF THE CONCEPTION OF THE CHILD, were not disqualified by any impediment to marry each other

o A subsequent valid marriage between the parents

Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.

Art. 179. Legitimated children shall enjoy the same rights as legitimate children.

Art. 180. The effects of legitimation shall retroact to the time of the child’s birth.

Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants.

Art. 182. Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues.

THE TITLE ON ADOPTION IN THE FAMILY CODE HAS ALREADY BEEN AMENDED BY SPECIAL LAWS:

RA 8552 (Domestic Adoption Act of 1998)February 25, 1998

Section 7. Who May Adopt. – The following may adopt:(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent;(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, Further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following:(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.


Persons and Family Relations Atty. Jacqueline LopezHusband and wife shall jointly adopt, except in the following cases:(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or(iii) if the spouses are legally separated from each other.In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses.Section 8. Who May Be Adopted. – The following may be adopted:(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;(b) The legitimate son/daughter of one spouse by the other spouse;(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;(e) A child whose adoption has been previously rescinded; or(f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s).Section 9. Whose Consent is Necessary to the Adoption. – After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:(a) The adoptee, if ten (10) years of age or over;(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and(e) The spouse, if any, of the person adopting or to be adopted.Section 11. Case Study. – No petition for adoption shall be set for hearing unless a licensed social worker of the Department, the social service office of the local government unit, or any child-placing or child-caring agency has made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s), and has submitted the report and recommendations on the matter to the court hearing such petition.At the time of preparation of the adoptee's case study, the concerned social worker shall confirm with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the concerned social worker to ensure that the adoptee is registered.The case study on the adoptee shall establish that he/she is legally available for adoption and that the documents to support this fact are valid and authentic. Further, the case study of the adopter(s) shall ascertain his/her genuine intentions and that the adoption is in the best interest of the child.The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case studies, that the petition should be denied. The case studies and other relevant documents and records pertaining to the adoptee and the adoption shall be preserved by the Department.Section 12. Supervised Trial Custody. – No petition for adoption shall be finally granted until the adopter(s) has been given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to adjust

psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter(s).The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. However, for alien adopter(s), he/she must complete the six (6)-month trial custody except for those enumerated in Sec. 7 (b) (i) (ii) (iii).If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a pre-adoption placement authority issued by the Department, the prospective adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s).Section 18. Succession. – In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.Section 19. Grounds for Rescission of Adoption. – Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations.Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.Section 20. Effects of Rescission. – If the petition is granted, the parental authority of the adoptee's biological parent(s), if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished.The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate.Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal Code if the criminal acts are properly proven.

RA 8043 (Intercountry Adoption Act of 1997)

SEC. 3. Definition of Terms.- As used in this Act, the term:

a) Inter-country adoption refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is field, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines.

b) Child means a person below fifteen (15) years of age unless sooner emancipated by law.

c) Department refers to the Department of Social Welfare and Development of the Republic of the Philippines.


Persons and Family Relations Atty. Jacqueline Lopezd) Secretary refers to the Secretary of the Department of Social Welfare and

Development.

e) Authorized and accredited agency refers to the State welfare agency or a licensed adoption agency in the country of the adopting parents which provide comprehensive social services and which is duly recognized by the Department.

f) Legally-free child means a child who has been voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code.

g) Matching refers to the judicious pairing of the adoptive child and the applicant to promote a mutually satisfying parent-child relationship.

h) Board refers to the Inter-country Adoption Board.

SEC. 7. Inter-Country Adoption as the Last Resort.- The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child. Towards this end, the Board shall set up the guidelines to ensure that steps will be taken to place the child in the Philippines before the child is placed for inter-country adoption: Provided, however, That the maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years.

SEC. 8. Who May be Adopted.- Only a legally free child may be the subject of inter-country adoption. In order that such child may be considered for placement, the following documents must be submitted to the Board:

a) Child study;

b) Birth certificate/founding certificate;

c) Deed of voluntary commitment/decree of abandonment/death certificate of parents;

d) Medical evaluation/history;

e) Psychological evaluation, as necessary; and

f) Recent photo of the child.

SEC. 9. Who May Adopt.- Any alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she;

a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adaptor is the parent by nature of the child to be adopted or the spouse of such parent;

b) if married, his/her spouse must jointly file for the adoption;

c) has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counselling from an accredited counsellor in his/her country;

d) has not been convicted of a crime involving moral turpitude;

e) is eligible to adopt under his/her nation law;

f) is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted;

g) agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act;

h) comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and

i) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws.

SEC. 10. Where to File Application.- An application to adopt a Filipino child shall be field either with the Philippine Regional Trial Court having jurisdiction over the child, or with the Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents, which application shall be in accordance with the requirements as set forth in the implementing rules and regulations to be promulgated by the Board.

Title VIII. – SUPPORT

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

Kinds of support:o As to amount:

Natural or the bare necessities



Civil or those in accordance with financial standing

o As to source of obligations: Legal or from provision of law Voluntary or from agreement of provision

of willo Special kind:

Alimony pendent lite or pending litigation

Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:

(1) The spouses;(2) Legitimate ascendants and

descendants;(3) Parents and their legitimate

children and the legitimate and illegitimate children of the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and

(5) Legitimate brothers and sisters, whether of full or half-blood.

Basis of support: FAMILY RELATIONSHIP

Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister,

being of age, is due to a cause imputable to the claimant’s fault or negligence.

This article applies only when the siblings are NOT legitimately relatedo If they re legitimately related, par. 5 of Art.

195 will apply

Art. 197. For the support of legitimate ascendants; descendants, whether legitimate or illegitimate; and brother and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership.

Art. 198. During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership. After the final judgment granting the petition, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give suppose to the innocent one, specifying the terms of such order.



Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided:

(1) The spouse;(2) The descendants in the nearest

degree;(3) The ascendants in the nearest

degree; and(4) The brothers and sisters.

Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each.

However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them.

When two or more recipients at the same time claim support from one and the same persons legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred.

Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.

Support pendent lite may be claimed in accordance with the Rules of Court.

Payment shall be made within the first five days of each corresponding month, or when the recipient dies, his heirs shall not be obliged to return what he has received in advance.

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto.



Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon an attachment or execution.

Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed.

Art. 207. When the person obliged to give support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed.

Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution.

Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties.

Title IX. – PARENTAL AUTHORITY


Art. 209. Pursuant to the natural right and duty of parents over the person and property of their Unemancipated children, parental authority and responsibility shall include the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

PARENTAL AUTHORITY or PATRIA POTESTASo The sum total of the right of parents over the

persons and property of their childreno True parental authority is necessarily

intelligent and morally uprighto Has for its purpose not only the sound

physical development of the children, but also the cultivation of their intellectual perception, and the nourishment of their appetitive and sensitive faculties

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

GR: PA cannot be waivedo Ex:

Court approved guardianship Adoption Emancipation by concession Surrender of child to orphan asylum

Art. 211. The father and the mother shall jointly exercise parental authority over the persons of



their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.

Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority.

Art. 212. In case of absence or death of either parent, the parent preset shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.

Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

TENDER AGE PRESUMPTION

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the

same consideration mentioned in the preceding article, shall exercise the authority.

Art, 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other.

CHAPTER 2. Substitute and Special Parental Authority

Art. 216. In default of parents or a judicially appointed guardian, the following persons shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

Art. 217. In case of foundlings, abandoned, neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to



heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency.

Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution.

Art. 129. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable.

The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances.

All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts.

CHAPTER 3. Effect of Parental Authority Upon the Persons of the Children Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;(2) To give them love and affection, advice and counsel, companionship and understanding;(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;(5) To represent them in all matters affecting their interests;(6) To demand from them respect and

obedience;



(7) To impose discipline on them as may be required under the circumstances; and(8) To perform such other duties as are imposed by law upon parents and guardians.

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law.

Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires.

Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard.

However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental

authority or adopt such other measures as it may deem just and proper.

Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency.

The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. CHAPTER 4. Effect of Parental Authority Upon the Property of the Children Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or



annual income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply.

Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family.

Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus give in whole or in part shall not be charged to the child's legitime. CHAPTER 5. Suspension or Termination of Parental Authority Art. 228. Parental authority terminates permanently:

(1) Upon the death of the parents;(2) Upon the death of the child; or(3) Upon emancipation of the child.

Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates:

(1) Upon adoption of the child;(2) Upon appointment of a general

guardian;(3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;(4) Upon final judgment of a competent court divesting the party concerned of parental authority; or



(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority.

Art. 230. Parental authority is suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender.

Art. 231. The court in an action filed for the purpose in a related case may also suspend parental authority if the parent or the person exercising the same:

(1) Treats the child with excessive harshness or cruelty;(2) Gives the child corrupting orders, counsel or example;(3) Compels the child to beg; or(4) Subjects the child or allows him to be subjected to acts of lasciviousness.

The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority.

If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances.

The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated.

Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority.

Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents.

In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child.


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